Executive Summary

This paper critically examines the recent amendments to Polish asylum law, particularly the legal framework established by the law of 21 February 2025, which restricts the right to apply for international protection at the Polish-Belarusian border. The analysis highlights the interplay between national security concerns and international human rights obligations, particularly the principle of non-refoulement. It argues that while Poland’s measures may be justified under the guise of national security, they pose significant risks to the rights of vulnerable migrants and undermine the fundamental tenets of asylum law. The paper concludes with recommendations aimed at reconciling border security with the protection of human rights.

Context & Background

The Polish legal landscape regarding asylum has undergone significant changes since July 2021, primarily in response to geopolitical tensions stemming from Belarus’s actions and the broader implications of Russia’s invasion of Ukraine. The Polish government has framed its border policies as necessary measures to counteract what it perceives as the instrumentalisation of migration by Belarus, which has allegedly facilitated mass illegal crossings and violent confrontations at the border. This context has led to the establishment of buffer zones and the introduction of laws that enable the temporary suspension of asylum rights, raising concerns among human rights advocates and international bodies regarding compliance with Poland’s obligations under international law.

The amendment to the Act on Granting Protection to Foreigners, enacted on 21 February 2025, has formalised the temporary restriction of asylum applications under specific conditions related to national security threats. This legal framework has been met with widespread criticism from various stakeholders, including the UNHCR and human rights organisations, who argue that such measures contravene the principle of non-refoulement and the right to seek asylum. The ongoing humanitarian crisis at the Polish-Belarusian border, characterised by reports of pushbacks and the denial of access to asylum procedures, further complicates the situation, necessitating a thorough examination of the legal, social, and political dimensions of these developments.

Deep Analysis

The legal implications of the 2025 amendment are profound, as they introduce a framework that allows for the temporary suspension of asylum rights based on the notion of ‘instrumentalisation.’ This term, as defined in the new law, encompasses actions by foreign entities that facilitate unlawful crossings, thereby justifying the restriction of asylum applications. However, the vagueness of terms such as ‘immediately’ and ‘instrumentalisation’ raises significant concerns regarding the potential for arbitrary enforcement by border guards. The lack of clear guidelines on how these terms are to be interpreted and applied may lead to inconsistent practices that undermine the rights of asylum seekers, particularly those from vulnerable groups.

Moreover, the amendment’s provisions appear to grant excessive discretion to border guards, potentially leading to violations of fundamental rights. The exclusion of certain categories of individuals from the right to apply for asylum, particularly those who may require special treatment, raises ethical questions about the treatment of migrants at the border. The ambiguity surrounding the criteria for accepting asylum applications, especially in cases involving unaccompanied minors or pregnant women, further complicates the legal landscape and poses risks of family separation and inadequate protection for vulnerable individuals.

From a social perspective, the implementation of these restrictive measures has significant implications for the treatment of migrants and the perception of asylum seekers within Polish society. The framing of migrants as potential threats to national security perpetuates a narrative that dehumanises individuals seeking refuge and exacerbates xenophobic sentiments. The humanitarian crisis at the border, marked by reports of violence and inhumane treatment, underscores the urgent need for a balanced approach that prioritises human rights alongside national security concerns. The Polish government’s response to the migration crisis must therefore be scrutinised not only for its legal compliance but also for its social ramifications and the potential for fostering a culture of intolerance.

Politically, the amendments reflect broader trends within the European Union regarding migration and asylum policies, particularly in the context of rising populism and nationalist sentiments. The Polish government’s actions can be seen as part of a larger pattern of resistance to EU directives on asylum and migration, which often emphasise the need for solidarity and shared responsibility among member states. The tension between national sovereignty and EU obligations presents a complex challenge for policymakers, as they navigate the competing demands of domestic political pressures and international legal commitments. The future of asylum law in Poland will likely depend on the outcomes of ongoing legal challenges and the evolving political landscape, particularly in light of the recent change in government following the October 2023 elections.

Recommendations

• Reassess the legal framework governing asylum applications to ensure compliance with international human rights obligations, particularly the principle of non-refoulement.
• Establish clear guidelines and training for border guards to reduce discretion and ensure consistent application of asylum laws.
• Implement robust monitoring mechanisms to oversee the treatment of migrants at the border and ensure accountability for violations of rights.
• Engage in public awareness campaigns to combat xenophobia and promote understanding of the rights of asylum seekers within Polish society.
• Foster collaboration with international organisations and NGOs to provide support and resources for vulnerable migrants at the border.

Conclusion

In conclusion, the recent amendments to Polish asylum law represent a critical juncture in the intersection of national security and human rights. While the Polish government asserts the necessity of these measures in response to external threats, the implications for vulnerable migrants and the integrity of asylum procedures cannot be overlooked. A balanced approach that safeguards national security while upholding the fundamental rights of individuals seeking protection is essential for Poland’s adherence to its international obligations and the promotion of a humane and just asylum system.