An Ethiopian citizen, was detained on 8 March 2023 by Border Guard officers at a location 7 km from the border line. D. had crossed the border a few days earlier, on 5 March. After D.’s arrest, the commander of the local Border Guard facility issued a decision based on Article 303b of the Foreigners Act, ordering the man to leave Polish territory. The decision was implemented immediately and the foreigner was returned to Belarus on the same day.
The man's legal representative, a lawyer from the Helsinki Foundation for Human Rights, lodged an appeal with the Commander of the Border Guard against the decision ordering the foreigner to leave the territory of the Republic of Poland. In the appeal, she argued, among other things, that the detention of the migrant did not take place immediately after crossing the border, which, according to Article 303 (1) (9a) of the Foreigners Act, is a necessary condition for the application of the procedure leading to with the issuance of the return decision. The lack of “immediacy” related to both the temporal and geographical aspects of the detention, which took place 3 days after crossing the border and 7 kilometres from the border line.
The Commander of the Border Guard agreed with the lawyer’s argument. By decision of 3 January 2024, he annulled the decision of the commander of the Border Guard facility ordering the foreigner to leave Poland and discontinued the proceedings in the case.
According to the Commander, “it cannot be assumed that the condition of 'immediate' detention of the foreigner after crossing the state border is fulfilled in the present case (...). The report on the border crossing attached to the file of the first instance body shows that the party crossed the border on 5 March 2023, i.e. three days earlier than the border crossing became known to the authorities. In addition, the foreigner was identified at a distance of about 7 km from the state border, which also does not meet the requirement of ‘immediacy’ of this event in relation to the time of the border crossing."
In such a case, according to the Commander, the Border Guard body “should have initiated and conducted an administrative procedure regarding the foreigner's obligation to return on the basis of Article 302 (1) (10) of the Foreigners Act. In the course of the proceedings, arrangements should also have been made to examine whether there are grounds to grant the foreigner a residence permit on humanitarian grounds or a tolerated residence permit on the territory of the Republic of Poland (...)”.
An earlier pushback of the foreigner was also unlawful, ruled the Provincial Administrative Court in Białystok
It is important to remember that the migrant had previously been on Polish territory: In February 2023, he was detained by officers from another Border Guard facility when he tried to rescue Mahlet Kassa, a 28-year-old woman with whom he had previously crossed the border and who was dying in the forest. After he was detained, the migrant was “pushed back” to Belarus on the basis of Section 3 (2b) of the so-called Border Regulation. This type of forced return is an ordinary measure that does not require the initiation of an official procedure or the issuance of an administrative decision by the border guard; it does not even involve taking the personal details of the person to be sent back.
The woman the Ethiopian man tried to help died.
At the time, the migrant's lawyer lodged an appeal with the Provincial Administrative Court in Białystok against the measure to return him to Belarus, which took place on 4 February 2023. In the judgment of 30 May 2023 (case number II SA/Bk 244/23), the Provincial Administrative Court unequivocally stated that the commander of the Border Guard facility had violated national law, including the Constitution of the Republic of Poland, and international law, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Geneva Convention relating to the Status of Refugees, by ordering migrant's return to Belarus. The Border Guard has not appealed against this judgment to the Supreme Administrative Court. The judgement is final and is in line with the case law of national courts, which states that the way uniformed services operate in the Polish-Belarusian border area violates Polish and international law.
Summary
The above case shows what violations of the law occur almost daily at the Polish-Belarusian border. The man was pushed back to Belarus at least twice by the Border Guard, each time in a way that is not compatible with the applicable law. Pushbacks are a daily occurrence at the Polish-Belarusian border. Some people are pushed back more than ten times by the Polish authorities. This poses a threat to their lives and health, as shown by the case of Mahlet Kassa, who died while her companions were being returned to Belarus. As the HFHR has repeatedly stressed, pushbacks are unlawful and should be stopped immediately, as we appealed to Prime Minister Donald Tusk on 9 January 2024.
