Suspension of the right to seek asylum in Poland and its immediate effects

Fig. 1 Full contents of the ordinance on the temporary restriction of the right to apply for international protection¹

The regulation cited above is an implementing act to the recently amended Act on Granting Protection to Foreigners on the Territory of the Republic of Poland. The amendment process was widely discussed and criticized, including by social organizations. Concerns were raised about, among other things, numerous ambiguities in the content of the act, along with the hope that the relevant regulation would clarify at least some of them.

The legislative process

In December 2024, a draft bill was published on the website of the Government Legislative Centre, proposing amendments to the existing Act on Granting Protection. The core of the proposed change was the introduction of a mechanism allowing for the temporary and territorial suspension of the right to submit applications for international protection in cases of so-called “instrumentalization of migration” by ‘other states’ which are not explicitly named. Such a “suspension” would be enacted through an ordinance issued by the Council of Ministers, a legal act of lower rank than a statute.

According to the bill the temporary suspension of the the submission of asylum applications can only be exercised when the following conditions are met:

An act of instrumentalization of migration is occurring;
The actions undertaken within the framework of such instrumentalization pose a serious and real threat to national or societal security; and
The introduction of a temporary restriction on the right to apply for international protection is necessary to eliminate threats of internal destabilization, and other measures are insufficient to address those threats.

After the first reading took place in the Sejm in January 2025, the bill was subsequently referred to a parliamentary committee for further consideration. Under public pressure, members of the committee agreed to organize a public hearing, allowing representatives of civil society to voice their opinions on the draft legislation. The hearing was held on February 4. The proposed changes were met with overwhelming criticism from the participants. Of the several dozen organizations that spoke, only the ultra-conservative think tank Ordo Iuris expressed support for the proposed amendments.

Despite this, the following day the committee adopted the draft bill. At the end of February, the Sejm passed the legislation. In mid-March, the Senate approved the bill without amendments. On March 26, it was signed into law by the President, and shortly after midnight on March 27. During the legislative process Maciej Duszczyk, responsible for migration policies in Poland reassured:

This law does not function in a normal situation. It functions in a very clearly defined situation. We have a definition of instrumentalization – it is written in a way that excludes normal situations. In fact, there has to be a very significant threat, also to the territorial cohesion of the state, etc., for this law to actually be applicable. […] This is a kind of safeguard that we want to have in the law, which will allow us to respond appropriately to situations in which… Today, to be honest, I don’t feel capable of predicting what those situations might be. That’s why it’s an ordinance that specifies this: the place and the time, really, in which it can be applied².

Despite this reassurance the corresponding ordinance was published mere hours after the presidential signature effectively suspending the right to seek asylum on the territory of ‘the border with the Republic of Belarus’. The immediate publication was made possible by the fact that the law did not include a vacatio legis period and entered into force the day after its signing.

The legislation stipulates that the suspension does not apply to the following categories of individuals provided that direct coercive measures or weapons were not used against them:

Unaccompanied minors;
Pregnant women;
Individuals who may require special treatment, particularly due to age or health conditions;
Individuals whom the Border Guard determines to be at risk of serious harm in the country³ from which they arrived directly onto the territory of the Republic of Poland;
Citizens of the state engaging in instrumentalization, from which territory the foreigners are arriving in Poland: in the current context, citizens of Belarus.

However, on the first day of the law, as reported by Grupa Granica a 17 year old unaccompanied Somali minor was pushed back from the hospital in Hajnówka which is located around 18 kilometers from the border:

The boy said he was 17 years old. […] The family is from a persecuted minority in Somalia. In Belarus, he experienced horrific violence. He fell off a border wall. Before an ambulance took him away, Polish officers still sprayed him with gas. In the hospital, he was unable to stand up, unable to eat or drink after starving for days in the forest. He declared his intention to seek international protection in Poland. He spent several hours in the ER, was picked up by the Border Guard, after which we learned that he had been pushed back⁴.

Criticism

Incompatibility with Higher-Order Law and Human Rights Standards

Various institutions—including the Commissioner for Human Rights, the Commissioner for Children’s Rights, the UNHCR Representative in Poland, the Helsinki Foundation for Human Rights, Amnesty International, the Polish Bar Council, and the National Council of Legal Advisers—consider the measures to be incompatible with the Constitution of the Republic of Poland, which guarantees the right to asylum, as well as with Poland’s binding international legal obligations, including the 1951 Geneva Convention and the EU Charter of Fundamental Rights. They argue that the legislation poses a threat to the lives and freedoms of foreigners seeking international protection in Poland.

One of the most significant criticisms is that the law violates the principle of non-refoulement—the prohibition on expelling or returning an individual seeking international protection to a territory where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.

Risks to Children and Families

Child rights experts—including the Commissioner for Children’s Rights and non-governmental organizations such as Save the Children—have raised concerns about the limited scope of the designated “vulnerable groups” listed in the legislation. Specifically, the law includes only unaccompanied minors, while excluding other minors from the same level of protection. Although the bill formally allows for the submission of a joint application by a family, this is only possible if the primary applicant belongs to one of the vulnerable groups.

For example, a pregnant woman traveling with her child—qualifying as a vulnerable individual and serving as the main applicant—can submit a joint application with her child, ensuring they are not separated. In contrast, a father traveling with his child—who would be the only eligible primary applicant in that case and is unlikely to qualify as a member of any recognized vulnerable group—would most likely be subjected to pushback at the border.

In the case of unaccompanied minors, another pressing issue is the initial need to recognize them as individuals under the age of 18. This must first be noticed by the officers carrying out the apprehension, which is particularly challenging in situations where apprehensions occur in forests, without witnesses, and under conditions of language barriers and stress. If the person is even considered as a potential minor, in case of further doubts, such as the absence of documents confirming age, the most commonly used method of verification is a medical examination involving an X-ray of the bones. However, this is against the European standards of age assessment, and carries the risk of incorrectly determining that the individual is an adult⁵.

Lack of Appropriate Competencies and Preparedness Among Authorities Responsible for Identifying Exempted Groups and Individuals

Organizations operating in the border area and engaging directly with Border Guard officers—including Médecins Sans Frontières (Doctors Without Borders)—have raised concerns about the discretionary nature of decisions regarding who qualifies for “special treatment on the basis of health condition.” These decisions are to be made by the Border Guard officers, often under pressure of time. However, the officers lack appropriate competencies to make such determinations, including the absence of medical education and insufficient knowledge concerning the identification of torture survivors, among other critical areas.

Moreover, people on the move are frequently intercepted at night, in forested terrain, under high-adrenaline conditions and limited visibility. These circumstances make it practically impossible to even superficially assess individual situations or identify members of vulnerable groups.

Ambiguity and Vagueness of the Provisions

Representatives of civil society, non-governmental organizations, as well as the Legislative Bureau of the Sejm, raised concerns about the lack of precision in the draft during the legislative process of the amendment. Attention was drawn to the fact that the key term of the act — “instrumentalization” — was defined in such a vague manner that it opens the door to arbitrary decisions regarding the suspension of the right to protection. Another significant area that was not clarified either in the act or in the ordinance is the territorial scope of the provisions — the regulation is to apply “at the state border with the Republic of Belarus,” without specifying exactly which area is covered by the suspension — in other words, how far from the borderline the “border” actually extends.

Consequences for people on the move from former Soviet Republics

The regulation has suspended the right to seek protection along the entire border, including Terespol – the only border crossing between Poland and Belarus accessible for private transit that remains open. Thus, the policy disproportionately impacts nationals of former Soviet Union countries who have, for years, sought protection at this crossing point—for example, women with children fleeing domestic violence in Chechnya or political dissidents from Tajikistan and other Central Asia countries.

The effective removal of access to international protection

Whereas prior to the enactment of these provisions it was sometimes possible to successfully submit an asylum application after crossing the green border, or at the border crossing in Terespol under the new suspension framework, this has become nearly impossible. Only individuals classified as belonging to “vulnerable groups” are eligible for exemption— provided they are granted this status that is determined arbitrarily by the Border Guard.

Conclusions

The legislation reinforces the existing chaos at the border and the ongoing abuses by border service officers. The provisions it contains, which are theoretically meant to protect individuals from vulnerable groups, are not supported by any procedures that would enable their practical implementation. Its rushed adoption did not allow for additional training or the development of appropriate procedures that could support the process of identifying vulnerable groups. It stands in contradiction to the standards of the Polish Constitution and international law. Moreover, the legislative process and the surrounding debate contributed to an anti-immigration narrative that dehumanizes migrants. It enables the further erosion of human rights in Poland and creates a dangerous precedent for restricting access to fundamental rights for a specific group of people.

Przypisy

1
Pursuant to Article 33a paragraph 5 of the Act of June 13, 2003 on granting protection to aliens on the territory of the Republic of Poland (Journal of Laws of 2025, item 223 and 389), it is ordered as follows: § 1. A temporary restriction shall be introduced on the right to submit an application for international protection. § 2. 1. The restriction referred to in § 1 shall be in force for a period of 60 days from the date of entry into force of the Ordinance. (2) The restriction referred to in § 1 shall apply at the state border with the Republic of Belarus. § 3. The Ordinance shall enter into force on the day of its promulgation.
2
https://orka.sejm.gov.pl/zapisy10.nsf/0/497638CD4EC8F2C0C1258C3F0042C167/%24File/0133910.pdf, p.12.
3
This country is not explicitly specified, but it is most likely assumed to refer only to Belarus, disregarding the close cooperation between Belarus and Russia
4
https://www.facebook.com/share/p/1H5sZQmbez/
5
According to European standards, in order to improve the reliability of chronological age assessment, it is recommended to use several different examination methods. The final evaluation should be based on a combination of these techniques. The choice of specific age verification methods should take into account the need to analyze all relevant factors—such as physical, psychological, developmental, environmental, and cultural aspects—in a way that ensures the highest possible accuracy of the results. It is equally important that the assessment be carried out by properly qualified professionals. Depending on the methods used, these may include, among others, pediatricians, general practitioners, radiologists, child psychologists, social workers, or other professionals with experience in assessing child development. See: European Asylum Support Office (EASO), Age assessment practice in Europe, 2014, p. 26.