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, emphasizing the implications for migrants subjected to push-back practices. The findings underscore the urgent need for a balanced approach that safeguards both national security and the fundamental rights of asylum seekers, particularly in light of the ongoing humanitarian crisis at the border.

Context & Background

The Polish government has enacted significant legal changes in response to the increasing tensions at the Polish-Belarusian border, particularly following the instrumentalisation of migration by Belarusian authorities. Since 2021, Poland has faced a surge in illegal border crossings, exacerbated by geopolitical tensions stemming from Russia’s invasion of Ukraine and Belarus’s facilitation of migrant flows as a means of destabilisation. The Polish Border Guard has reported numerous violent incidents involving migrants, prompting the establishment of buffer zones and the introduction of restrictive measures aimed at controlling the situation. These developments have raised concerns regarding the treatment of migrants and the adherence to international human rights standards, particularly the principle of non-refoulement, which prohibits the return of individuals to countries where they may face persecution or serious harm.

The legal amendments introduced by the Polish government, particularly the law of 21 February 2025, have further complicated the asylum landscape. This law allows for the temporary restriction of the right to apply for international protection under specific circumstances, including the notion of ‘instrumentalisation’ of migration. Critics argue that these measures not only contravene Poland’s obligations under international law but also effectively legitimise push-back practices that have been condemned by various human rights organisations. The situation at the border has thus evolved into a multifaceted crisis, where legal, humanitarian, and political dimensions intersect, necessitating a thorough examination of the implications of these legal changes for both migrants and the Polish state.

Deep Analysis

The legal framework established by the law of 21 February 2025 represents a significant shift in Poland’s approach to asylum seekers at its borders. By allowing for the temporary suspension of the right to apply for international protection, the law introduces a mechanism that prioritises national security over humanitarian considerations. The criteria for imposing such restrictions are notably vague, relying on the subjective assessment of the Council of Ministers regarding the threat posed by instrumentalisation activities. This ambiguity raises concerns about the potential for arbitrary enforcement and the erosion of legal protections for vulnerable populations seeking asylum.

Moreover, the law’s provisions regarding exceptions to the temporary restrictions are limited and contingent upon the assessment of the Border Guard authority. While the law acknowledges the need to protect certain categories of individuals, such as unaccompanied minors and pregnant women, it simultaneously imposes stringent conditions that could effectively exclude many from accessing asylum procedures. The requirement that these individuals must not have engaged in coercive actions upon crossing the border further complicates their ability to seek protection, as it places the burden of proof on the asylum seeker, potentially leading to further violations of their rights.

The implications of these legal changes extend beyond the immediate context of the Polish-Belarusian border. The ongoing humanitarian crisis, characterised by reports of push-backs and the lack of adequate medical care for migrants, underscores the urgent need for a comprehensive response that aligns with international human rights standards. The deaths of individuals attempting to cross the border, as documented by various human rights organisations, highlight the dire consequences of restrictive asylum policies. The European Court of Human Rights (ECtHR) is currently reviewing several cases related to these practices, which could set important precedents for the treatment of asylum seekers in similar contexts across Europe.

Politically, the amendments to Polish asylum law reflect a broader trend within the European Union, where member states are increasingly adopting restrictive measures in response to perceived threats from migration. This shift raises critical questions about the balance between national security and the protection of human rights. The EU’s Crisis and Force Majeure Regulation 2024/1359, which defines instrumentalisation as a crisis situation, provides a legal framework for member states to justify restrictive measures. However, the application of such measures must be carefully scrutinised to ensure compliance with international obligations, particularly in light of the EU’s commitment to upholding the rights of asylum seekers. The Polish government’s actions may set a concerning precedent for other member states, potentially leading to a race to the bottom in terms of asylum protections across the EU.

Recommendations

• Reassess the legal framework governing asylum applications to ensure compliance with international human rights obligations.
• Implement clear guidelines for the treatment of asylum seekers, particularly regarding the criteria for temporary restrictions on asylum applications.
• Enhance oversight mechanisms to prevent arbitrary enforcement of asylum laws and protect vulnerable populations.
• Engage in dialogue with international human rights organisations to develop a comprehensive approach to border management that prioritises humanitarian considerations.
• Ensure that any legal amendments are subject to rigorous scrutiny and public consultation to uphold democratic principles and transparency.

Conclusion

In conclusion, the recent amendments to Polish asylum law reflect a troubling trend towards the prioritisation of national security over the protection of human rights for asylum seekers. The legal framework established by the law of 21 February 2025 raises significant concerns regarding the treatment of vulnerable populations at the Polish-Belarusian border and the potential legitimisation of push-back practices. It is imperative that Poland, in collaboration with the European Union and international human rights bodies, re-evaluates its approach to asylum seekers to ensure that it adheres to its international obligations and upholds the fundamental rights of individuals seeking protection.