Explore More »

All Quiet on the Eastern Front: The Polish Migration System

The purpose of this paper is to support the assertion that there are no substantial human rights abuses or violations currently taking place within the Polish migration system. Specifically, we have found that from beginning to end, the process by which foreigners enter or leave Poland contains a number of gaping bureaucratic inefficiencies and structural obstacles, but no major threats to human rights. 

In order to show this is true, we must address the questions posed by the United Nations’ Universal Declaration of Human Rights in this regard. If this instrument is to be taken as the definitive reference point, it seems possible for one to claim that Polish migration policy does not adequately protect the rights given in Articles 13, 14, or 15 of the Declaration, listed below:

Article 13 
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

We suggest here that in general, the alleged breaches to these rights of migrants are instead due to noncompliance with Polish migration policy on the part of migrants and foreign governments. There are a number of factors to suggest the lack of a present human rights crisis in this regard.

First, Poland is simply not a popular destination for migrants, either documented or undocumented. When interviewed, Deputy Colonel of Border Guards Andrzej Pilaszkiewicz reported that the largest problem facing the Polish migrant system is a lack of migrants. He stated that 60 to 70 million people cross Poland’s borders every year; of these, probably 6,000 to 7,000 are asylum seekers. While the exact number of illegal migrants is unknown, it does not significantly alter this math. Deputy Colonel BG Andrzej Pilaszkiewicz stated that if the number of migrants coming to Poland were to drastically increase, serious systemic issues could arise. Currently, however, the relatively low number of migrants entering and leaving Poland is the main reason that there have not been serious human rights violations there. 

Poland has for many years been primarily a country of migratory outflow. Polish citizens tend to emigrate mainly to Western European countries or the United States. While in recent years—particularly since Poland’s accession to the European Union—claims have been made that its inflow of migrants is beginning to catch up to its outflow, no conclusive data has appeared to support this. Poland’s continued status as an outflow country is largely due its low income levels in comparison to other Western European countries, and perceptions on the part of migrants that “Old Europe” countries like France or Germany are better destinations. These phenomena are, in a certain sense, self-perpetuating. Because there are not large foreign communities in Poland, there are not strong social networks already in place which might make Poland a more attractive destination for immigrants. In contrast, in certain “Old Europe” countries, immigrant communities are more well-established, and networks of services and support are stronger and more accessible. The European Union policy that limits asylum applications to only one country may thus contribute to Poland’s becoming a non-destination for asylum seekers and migrants: if they can only apply to one country for refugee status, they will opt to go further West.

Compounding these factors is also the notion that Poland is a “transit country” for other countries in the European Union. It is believed that significant numbers of documented and undocumented migrants arrive in Poland with the intention of taking advantage of Polish membership in the Schengen area agreement, and travel further west without having to endure heavy scrutiny at internal European borders. While this claim seems plausible and has been widely discussed since Polish accession, it is not well-documented. At least in the case of legal migrants, this dearth of data seriously challenges the idea that migrants are using Poland as a transit country. Moreover, it is unlikely that, if a migrant has the resources to arrange legal migration to Europe, that person would choose to migrate to Poland first and only then to another country. In the fully legal scenario, Poland’s ostensible status as a transit country, that is being used as a legal “stepping-stone” and not as a place for permanent migration, would reinforce its status as a non-destination for immigrants. Therefore, it is only in the illegal scenario that Poland’s possible status as a transit country becomes truly relevant. In this case, the lack of evidence supporting the claim is unsurprising; by definition, there will not be much documentation of undocumented traffic through Poland to other countries. 

While it is beyond the scope of this report to fully account for the actions of the undocumented migrant population in Poland, anecdotal evidence and a quick review of immigrant communities in other European countries suggest that whatever Poland’s status as a transit country, the volume of illegal migrants trafficking through it is not substantial enough to alter the conclusion that Poland is not a major destination for immigrants and that Polish migration is relatively free of human-rights abuses. Firstly, the most significant undocumented communities in Poland appear to be from Vietnam, Ukraine and other Eastern European countries. The responses from Western nations do not indicate that the illegal traffic from Poland to the West among these populations is substantial. Moreover, anecdotal evidence suggests that, in the case of some communities, such as the Vietnamese, the illegal population wishes to stay in Poland. Finally, while it is difficult to determine exactly how illegal migrants make their way into Poland, one could argue that, especially in the case of non-Eastern European illegal migrants, whatever methods they use can just as easily be applied to other European countries, which would render an illegal stopover in Poland unnecessary.

This observation leads to another major reason for the lack of major human rights abuses here: Poland is a comparatively easy country to access for illegal immigrants. Its borders, while well-regulated by Frontex and the National Border Guard Agency, are not particularly dangerous to cross, especially for people from other Eastern European countries, one of the primary sources of illegal immigration. In contrast, attempts to illegally cross the Mediterranean Sea or US-Mexico border pose more direct threats to human rights, often involving the loss of life and physical endangerment. Poland does not have to address dire problems of this kind; there have been very few reported deaths among migrants illegally crossing Poland’s Eastern border. The most widely publicized of these by far occurred in 2007, when three Chechen children died while attempting to cross the border with their mother. While this incident was gruesome—receiving a great deal of national attention, and even prompting an outcry from the Polish First Lady, it was an isolated event. The scale of media coverage, public interest, and policy response resulting from the story points to the rarity of such border-crossing disasters. A border guard named Anna says:

We are still understaffed but we are getting new personnel. We also have 
modern equipment. During the last three years the number of illegal migrants 
to Poland has decreased, especially in my region of Poland, the eastern 
Podlaskie region. For instance ten years ago the number of illegal migrants 
was on the level of 20 groups per year. Now it is about two groups per year.

We would like to strike a note of caution here for the reader; we certainly do not wish to report that there are no tragedies related to illegal border crossings. However, there is no data to indicate any such tragedies. The possibility of a large-scale cover-up over immigrants who die in illegal transit to Poland is unlikely. Both the European Union and Poland have poured funds into border security since the Polish accession, and in all likelihood this strengthened monitoring and security apparatus would detect any sort of large-scale, systemic series of mortalities. Moreover, because some of the funds for monitoring are European Union funds, there is international scrutiny of operations there. Thus, if border security operations were in fact to locate large numbers of migrants being hurt or killed in transit, it is highly improbable that the situation would not be reported. After all, the dangers faced by migrants illegally crossing the Mediterranean and their occasional deaths are well-known among European nations; there is no apparent reason why, were similar dangers present on the Eastern border, no one would know about it.

The reference above to EU funding of the monitoring of borders in Poland introduces a final reason that there are not systemic human rights abuses within the Polish migration system. Even before Poland’s formal accession to the European Union, its migration policy had become heavily Europeanized. Monika, a graduate student researching migration in Poland, has reported that this process of Europeanization did not coincide with the specific time of accession in 2004, but actually occurred several years prior. The overhaul of Polish migration policy to conform with Western European policy was considered a crucial prerequisite for Poland’s membership in the European Union. Monika stated that changes to migration policy were somewhat easier to accomplish prior to 2004, because Poland had a broad political goal—EU accession—to guide its reforms. Katarzyna Przybysławska and Andrzej Pilaszkiewicz confirm that the changes made to Polish law and procedures to make them consistent with EU law were generally well-implemented. Of course, the Europeanization of Polish migration policy does not, in itself, mean that there are no human rights abuses with the Polish system. One might raise the previously discussed example of illegal Mediterranean crossings to dispute the claim that an EU migration policy necessarily implies success on the human-rights front. Nevertheless, we have at the very least established that there are neither a large volume of migrants affected by Polish migration policy, nor particularly dangerous circumstances that they need to be protected from. 

The remaining area in which human rights abuses might constitute a major risk is in the policy arena. If Polish policy were to fail at effectively managing the limited flow of migrants in and out of the country, to the point of endangering or discriminating against them in terms violating the Universal Declaration of Human Rights, then it would be creating human rights problems where they had not existed before. Here, the Europeanization of Polish migration policy has played an important role in preventing abuses. While there may be some debate as to how much the EU should do to protect the human rights of those endangering themselves by attempting to cross the border illegally, there is a general consensus that no major human rights abuses are embedded within EU migration policy itself.  This would suggest, if the Polish migration system truly conforms to EU standards, that there will not be systemic policy-based abuses taking place through that system

However, one could argue that there are, in fact, systemic human rights abuses within standard EU migration policy. In particular, the Dublin II protocols, which stipulate that an asylum seeker may only apply for asylum in his/her recognized country of entry, could be considered a violation of Article 14 of the Universal Declaration of Human Rights (UDHR). This argument would not be compelling if there were fully standardized procedures of asylum-seeking and detention across the EU. Were this the case, one could simply think of the European Union as a single country, to which an individual could apply for asylum under Article 14 of the UDHR. However, there are discrepancies in procedures and resources across the EU with respect to the asylum process. In Poland, for instance, Katarzyna Przybysławska reports that the social care provided to refugees who have disabilities or psychical traumas, or are victims of violence, is greatly insufficient. There are only a handful of psychologists for the more-than-12 detention centers in Poland. Sometimes, this mental disability or illness is not even identified. Unidentified depression, frustration or aggression often becomes a setback, and yet another reason for mistreatment by authorities. This situation can be contrasted with that in the Netherlands or Denmark, where adequate psychological care and social services are a given. 

A somewhat different example is the case of people who seek asylum on the basis of persecution due to sexual orientation. Not all countries in the EU have granted asylum on this basis (Poland not among them); thus one could argue here, as well, that the Dublin II protocols are violating Article 14 of the UDHR. In the case of asylum-seekers with psychological needs, Katarzyna Przybyslawska reports that such individuals often point to the insufficient number of refugee psychologists in Poland as an argument for allowing them to apply for refugee status in another country. These appeals are often successful, leading to their being granted asylum on this basis. This suggests that the EU policy’s abuse of human rights is probably minimal, since procedural exceptions have been made when needed. The case of gay asylum-seekers is trickier, however; it is not entirely clear whether such exceptions are made for these individuals. However, this probably has more to do with the uncertain status within the UDHR of persecution on the basis of sexual orientation, than an outright attempt to crush human rights. In any case, this is a problem which is not limited to Poland, and would not be remedied outright by Poland’s removal from the Dublin II accords. Instead, a more explicit protection of the rights of gay individuals under the UDHR would be the most effective way to resolve the problem, hopefully leading to substantive policy changes in most EU countries, including Poland.

Overall, then, we find that, due to the low volume of migrants in and out of Poland, lack of dangerous border crossings, and large degree of Europeanization that characterizes Polish migration policy, there are not significant or systemic human rights abuses currently occurring within the Polish system. Beyond this general claim, however, it could be argued that smaller human rights abuses, particularly those which violate Articles 13, 14, and 15 of the Universal Declaration of Human Rights, can still occur. We present a number of these possible abuses here. Before discussing them, we would like to point out that they are largely procedural and based on bureaucratic dysfunction, as opposed to an outright disregard for human rights or dignity. Certainly, in each case, the infringements could be extrapolated to constitute full-blown human rights abuses, but we caution against perceiving them in this light. In general, solid procedural reforms would be sufficient to remedy the situations. Moreover, in some cases the circumstances are brought about by a noncompliance with Polish laws and rules concerning migration on the part of migrants, or by their home countries’ governments. In these cases, it is unclear exactly how the Polish government could act to correct the abuses that do occur. Therefore, indirect action, such as opening up other, more effective bureaucratic avenues through which migrants could achieve their ends, would probably constitute the best approach.

Katarzyna Przybysławska identifies the non-suspensive character of appeals regarding the decision of deportation as the major problem characterizing deportation procedure in Poland. Foreigners are eligible to appeal the decision made by administrative organs, but the deportation is not suspended by the appeal. Many such appeals are successful, but this results in courts overthrowing deportations which have already been executed. In addition, the character of such appeal procedures makes foreigners reluctant to use it. This is a serious problem, and could possibly be construed as a violation of Article 14 of the UDHR. We should recognize, however, that the issue is, at its core, logistical. A true violation of Article 14 would require that there be an inability on the part of an individual to apply for asylum in Poland. It would be a stretch to say that an inability to effectively appeal an administrative decision is equivalent to an inability to apply for asylum. Even if we take this equivalence as a given, the non-suspensive character of appeals would still not violate Article 14. Asylum seekers in Poland can appeal; in fact, as just stated, many of these appeals are successful. The difficulty is that those people have already been deported back to their home countries. They can either not be found, or have already exited the asylum-seeking process. An alternative scenario is one in which the government successfully tracks down the person who filed the appeal and bring him or her back to Poland. In this case,  In this case, we are dealing with a situation whereby Poland has essentially failed to effectively carry out the decisions of its courts (i.e., failing to comply with a successful appeal by locating the asylum-seeker). This constitutes an extralegal procedural difficulty; not a systemic miscarriage of justice. The easiest fix for this problem would be simply to make appeals suspensive in character. It might be somewhat more expensive to keep asylum seekers in Poland during their appeal process; however, the country could save the expense of having to locate them post-deportation, and would be able to materially uphold the decisions of its courts.

A related problem, also reported by Katarzyna Przybysławska, has to do with the insufficient legal counsel available to migrants. Poland is obliged by EU directives to supply free legal support for every asylum seeker. However, the mechanisms for fulfilling this obligation have not been adequately developed, and immigrants instead must rely on the support of NGOs to obtain legal assistance. This gap in the legal process, which compounds effects from the other problems discussed above, constitutes a serious challenge to the ability of migrants to apply for asylum in Poland. It also points to what is arguably the largest systemic problem in the Polish migration system today. While EU law and directives have been incorporated into Polish policy, the implementation and fulfillment of those laws have not always been fully accomplished. For the most part, the gap between law and real-life events has been closing, due largely to EU scrutiny and funding. However, as the noncompliance with Article 15 of Directive XXX demonstrates, there is still progress to be made. Again, we should identify this problem not as a violation of human rights, but as something closer to a bureaucratic failure. There is evidence that the problem is being addressed, or at least, that there are financial efforts being made through the system to correct the failure. The problem of successful but unrealized appeals, discussed above, serves as an indication that asylum-seekers are able to navigate the legal process of asylum-seeking at least to some extent.

Another issue to consider is attitudes toward migrants. Polish guards often adopt an authoritarian stance in their interactions with them. Ppłk SG Andrzej Pilaszkiewicz reports that while all interactions between border guards and migrants take place in open, well-monitored areas, where the possibility of serious physical or psychological abuse is very small, Polish guards do not always treat migrants and detainees with appropriate respect and politeness. Significant intercultural barriers exist between these guards and the migrants. Often, border guards are not properly educated in terms of language and culture to process migrant cases as effectively and politely as possible. Again, we would argue that this problem does not represent a dire human rights abuse, having much more to do with a gap that continues to exist between bringing Polish policy into line with EU standards, and a full implementation of the spirit of those laws. Pilaszkiewicz believes that a broader change in attitude on the part of Polish people towards foreigners and immigrants will lead to a similar change in attitude among border guards. He recalls that it was only a few years ago that border guards along Poland’s western border were recalled (when Poland entered the Schengen agreement).  In the meantime, these guards have not been fully reintegrated into the country’s migration system. 

Instances like these demonstrate that there is some disconnect between policy changes, and the full realization of new procedures. Nevertheless, what matters is, first, that progress is made; and, second, that no serious violations of rights occur during the transition. Both of these criteria appear to have been met in the current Polish system. Evidence for this can be found in some of the ways in which foreign detainees have acted in order to accelerate the transition process. When confronted with insufficient support or difficulties from border guards, detainees have used a number of methods to assert their needs and preferences. Katarzyna Przybysławska reported that several Vietnamese detainees went on a hunger strike, demanding a change in the dietary regime at the detention center: they wanted more rice instead of potatoes. While a hunger strike for rice over potatoes does point to intercultural difficulties between detainees and border guards, the fact that detainees were capable of asserting themselves in this way, and chose to do so over an issue like food preference, is a positive indication of how much the rights of detainees are respected and provided for. Human rights abuses would involve a situation whereby detainees had nothing to eat whatsoever. Moreover, the successful use of hunger strikes as a method of protest demonstrates that Polish border guards are concerned with the health and welfare of their detainees; at least, sufficiently concerned to change policy in order to protect them.

The difficulties discussed thus far have, for the most part, centered around violations of Article 14 of the UDHR. Another interesting case, involving Vietnamese migrants in Poland, concerns possible violations of Articles 13 and 15.  Father Jacek Gniadek works with populations of documented Asian migrants in Warsaw. He recounted one specific pathway used by documented Vietnamese migrants to attain the necessary legal status to continue living in Poland: acquiring a tolerated stay status. There are two methods for achieving this status. The first scenario is that migrants apply for asylum, be denied, and then be granted a tolerated stay status. An alternative scenario takes advantage of the Polish law requiring that migrants who have remained undocumented in a detention center for 12 months be release, at which point the government will grant them tolerated stay status. Father Gniadek noted that, generally speaking, a tolerated stay status is more useful to many Vietnamese migrants than refugee status, because the latter could lead to trouble with the Vietnamese government. He mentioned the possibility of reprisals by Vietnam’s communist government against the families of individuals claiming refugee status, as well as their being barred from ever returning to Vietnam. Because of these risks, undocumented Vietnamese migrants will often go to great lengths to achieve tolerated stay status, particularly through the second available method, the twelve-month undocumented stay in a detention center. Since the appearance of proper documentation for any detainee would result in that person’s being forced to apply for asylum and/or return to their home country, to get around this, Vietnamese migrants produce no documentation and supply false names and information on the forms sent to the Vietnamese embassy to determine their identity. 

Father Gniadek believes that this deception extends even further to include the Vietnamese and Chinese embassies, who are themselves complicit in this process. Well aware of the procedure for gaining a tolerated stay status, the embassies facilitate the migrants’ efforts, making only minimal attempts at identification. This enables migrants to remain undocumented for the required twelve months, after which, as stated earlier, the Polish government awards them a tolerated stay. Father Gniadek cites an instance where a Chinese detainee actually wanted to confirm his identity through his embassy, so that he could return home to an ailing son. However, even when the man had submitted his correct information, the embassy did not provide him with any identifying documents or acknowledge him as a Chinese national. It is unclear whether this was the result of error or calculated negligence on the part of the embassy; Gniadek suspects the latter. 

This elaborate dance between Asian migrants and Polish migration authorities is, on its face, quite problematic. A case could be made that such behavior violates both Articles 13 and 15 of the UDHR. Father Gniadek’s story of the Chinese detainee who could not return home highlights a situation in which one wishes to exercise his human right to return to his home country but, either through error or extralegal obstacle, cannot—obstructing the freedom of movement cited in Article 13. Moreover, that fact that migrants must essentially strip themselves of their nationality—indeed, their entire identity—in order to accomplish their goal of legal status in Poland, appears to directly contradict Article 15’s guarantee of nationality. 

Despite these apparent violations of human rights, however, it is unclear whether cases like the one above can be categorized outright as such. First, with the exception of very isolated cases such as that of the Chinese national, the detainees have purposefully waived their rights for a specific period of time in order to accomplish a political end. We should note that they are, in a sense, scamming the system in order to gain a tolerated stay status. They could have chosen to avoid having their rights violated by confirming their true identities with their embassies, and applying for asylum. While it is true that these embassies by most accounts do not confirm identities, even when they are truthfully submitted, in that case the rights violation would apply to the home country of the migrant—not to Poland. In general, there seems to be a complicated calculus at work here, whereby rights are exchanged for legal status. Therefore, it would be difficult to prove that direct human rights abuses are occurring at any point in this process; at least, occurring without the complicity of the victims. 

However, the situation does point to the system’s need for crucial reforms to streamline its operations and increase its effectiveness. For instance, in the case of the Asian migrants who willingly delete their identities and remain in a detention center for twelve months in order to gain tolerated stay status, the Polish government should recognize this behavior, and alter the process so that these people can achieve the same end result with less trouble and deception. This would be not overwhelmingly difficult, due to the small size of the populations affected by these changes, and to make meaningful and sensible adjustments to relevant procedures would go a long way toward enabling these Asian populations to integrate more successfully into Polish society. The persistence and intelligence demonstrated by these migrants in their attempts to circumvent the current system suggests that they will end up in Polish society anyway; therefore, in view of the facts on the ground, the exigencies of the system should be modified.

A final area to be considered is one that lies outside the Polish migration system: the problem of human trafficking. This is a criminal act, which clearly violates human rights. Independent United Nations experts have reported that human trafficking into Poland increased sharply, following Poland’s accession to the EU and its entrance into the Schengen agreement. Since then, efforts have been made to stop the trafficking, which, while moderately successful, have not been able to determine the exact size and extent of this problem. Generally speaking, improved border security and tighter controls on border traffic and issuance of visas have helped in the fight against human trafficking. These policy shifts are significant, in that they indicate an awareness of the problem of human trafficking on the part of the Polish government. The problem of human trafficking in Poland, then, is serious, but not unique. Ultimately, we do not classify it as a systemic abuse of human rights because it is a crime which the system deals with more or less effectively.

As we have seen throughout the paper, when examining the Polish migration system from the top down, we find no systemic human rights abuses within its apparatus. In great part, this is due to the comparatively low traffic of migrants in and out of Poland, the predominance of migratory outflow over inflow, the country’s relatively safe borders, and its adoption of many European migration policy structures. Nevertheless, there are certainly problems within the Polish system. Beyond the possibility of abuses related to the Dublin II protocols, there are issues of insufficient legal aid for migrants, a non-suspensive appellate system, inadequate intercultural training for border guards, and ineffective procedures and regulations that encourage migrants to place themselves at risk. However, all of these issues are largely the result of bureaucratic failures and lags in policy implementation, not pervasive and dangerous human rights abuses. Overall, Poland’s current system for dealing with migrants manages to accomplish its ends without compromising human rights.

References

List of interviews: 

Father Jacek Gniadek. Justice and Peace coordinator, “Fu Shenfu” Migrant Center. Warsaw, Poland. June 29, 2009. 
Katarzyna Przybysławska, Board Presiden, Halina Nieć Legal Aid Center. Krakow, Poland. June 30, 2009.
Monika Mazur-Rafal. Director, Humanity in Action Poland Foundation. Warsaw, Poland. June 28, 2009.
Magdalena Szarota. Coordinator, Humanity in Action Poland Foundation. Warsaw, Poland. June 30, 2009.
Ppłk SG Andrzej Pilaszkiewicz, Head of Office for Foreigners, Polish Border Guards. Warsaw, Poland. January 7, 2009.
Explore More »

Share this Article

About This Article

HIA Program:

Poland Poland 2009

Authors:

Related Media

Browse all content