The case concerned an applicant from Iraq who complained against the action of the Commander of the Border Guard Post for the return to the state border line with Belarus. The applicant stated that on 27 September 2021, she was arrested with her family (four minor children) by a Border Guard patrol and then transferred to the area covered by the state of emergency from where she was transferred to Belarus. The application also claimed that her return to the national border occurred despite her prior declaration of her wish to apply for international protection, as the authorities applied the Border Regulation. The applicant further claimed a failure on the part of the authorities to examine her situation individually, including the risk of being subjected to ill-treatment in Belarus, in violation of the principle of non-refoulement and of Article 3 of the European Convention, and a violation of Article 13 of the European Convention for the authorities’ failure to provide the right to an effective remedy as the Border Regulation does not provide for the possibility of challenging the substantive and technical act (such as the withdrawal of the applicant to the national border) or of suspending its implementation.

On 17 March 2022, the court decided to join Cases II SA/Bk 892/21, II SA/Bk 893/21 and II SA/Bk 894/21 for joint examination and judgment pursuant to Article 111(2) of the Proceedings before Administrative Courts Act, on the ground that those cases have a common administrative file and are based on the same facts.

The court noted that the authorities are under the obligation not to initiate proceedings for an obligation to return if the procedure for granting international protection to the foreign national is ongoing, unless the foreign national has lodged a subsequent application for international protection. In addition, the court noted that a decision requiring a foreign national to return must not be enforced if the foreign national has declared an intention to lodge an application for international protection. As soon as the application is made, the foreign national has the right to remain in the territory of the Member State.

In the present case, after the discovery by Border Guard officers of the illegal crossing of the border by the applicant, the Border Guard should have either initiated proceedings to oblige the applicant to return or allow her to formally lodge an application for international protection as soon as possible, so that she would have obtained the status of party to the proceedings and thus the procedural guarantees and the right to initiate a review of the first instance acts. The court concluded that the authorities failed to conduct an individual assessment of the applicant’s case.  

The court also noted that neither the national legal provision nor the factual circumstances (including the migration crisis at the EU external border caused by external factors) could exclude the requirement that a Member State apply the principle of non-refoulement, even to foreign nationals who cross Poland’s borders illegally.