A single mother, Russian national of Chechen origin, applied for international protection in Poland after crossing the border to Poland. They left for Germany and the Polish authorities discontinued the asylum procedure. In Germany she gave birth to a daughter. They were transferred to Poland on 31 January 2017.
By order of 1 February 2017, the District Court in Słubice ordered the applicant and her daughter to be placed in a detention centre for a period of 60 days from 31 January 2017 to 1 April 2017, based on the asylum law provisions. By order of 30 March 2017, the court extended the stay in the detention centre until 29 July 2017, for the time necessary for the adoption of the decision on the granting of international protection.
By decision of 1 June 2017, the Head of the Office for Foreigners refused to grant international protection and on 18 July 2017, the Refugee Board upheld the contested decision.
Thus, the mother and the child were held in guarded centres for migrants for approximately 16.5 months, initially in connection with the pending asylum procedure on the basis of the asylum law, and then in connection with the procedure for return of rejected asylum applicants, on the basis of the Act on foreigners. They requested compensation for their detention in guarded centres.
Their actions were dismissed by the District Court on 6 July 2020 and by the Court of Appeal. The applicants appealed in cassation before the Supreme Court.
The Supreme Court noted that the right to liberty is protected by the Constitution in Poland and that any deprivation or restriction of liberty must respect the principle of proportionality in Article 31(3) of the Polish Constitution. The Supreme Court recalled that the detention of applicants for international protection does not have a repressive function, nor is its use intended to protect the Polish borders or the EU external borders, or to combat illegal migration. The court also noted that courts may not reply on presumptions but in order for detention to be lawful, it must be demonstrated that it was necessary in the particular case.
The court added that if detention in a guarded centre was justified by the necessity to perform certain activities with the person’s participation, but these activities were not implemented or the actual period of detention was not necessary for them to be carried out, there are grounds for considering that the application of this measure was unjust in part or in whole. Thus, courts must examine whether and what activities involving the person were carried out and planned in the case, and what information was to be collected with their participation.
The Supreme Court also examined the ground of detention related to the risk of absconding and noted that the person would reside lawfully on the territory of Poland and thus they are not prosecuted or leaving the place assigned.
The Supreme Court also examined the obligation to assess the best interests of the child and recalled that nationality must not play role in the degree of protection of a child’s constitutional rights. The court further made reference to the medical documents that are prepared when a child is placed in detention to check for any obstacles to placement in detention and noted that these were not sufficient as they did not relate to the direct examination of the minor and to an individualised assessment of the psychophysical and developmental state of the minor. In addition, the court held that, contrary to the ECtHR jurisprudence (M.D. and A.D. v. France, 57035/18, 22 July 2021), there was a failure to establish the evidentiary basis for each extension of detention and the lack of risk to the minor’s well-being, considering that the deprivation of liberty of a mother and her child constitutes a threat to the normal development of the child. The court further noted that the welfare of the child cannot be reduced solely to health issues and indicated to the Court of Appeal to diligently address the standards for child detention arising from ECtHR case law, on duration of detention of minors, length of administrative proceedings and the primacy of the interests of the child.
Regarding detention related to deportation proceedings, the Supreme Court also referred to the situation where detention is used due to delays in obtaining documents from third countries. The Supreme Court indicated that when determining whether there has been a delay, this should be assessed in the context of the time limit within which the state concerned is obliged to respond to the request of the Polish authorities.
The Supreme Court also noted that the provisions on the maximum period of detention during deportation proceedings (Article 403(3) and (3a) of the Act on Foreigners) should be correctly applied, specifically the maximum time limit of six months. The Supreme Court further indicated that if a third country national is detained in a guarded centre on the basis of a court decision issued under the ordinary grounds (Article 407(1-2a) of the Act on Foreigners) if the period exceeds 6 months then, in the absence of an amendment of the legal grounds for that detention, the period of detention in the guarded centre beyond the 6 months becomes unjustified.
The case was remitted to the Court of Appeal in Warsaw for retrial.