Four Tajik nationals, repeatedly attempted to enter Poland at a Ukrainian border crossing from December 2016 to February 2017. They were refused entry each time by border guards in Medyka and Dołchobyczów, who interviewed them and recorded in a summary official note in Polish. They submitted that on each attempt they expressed their wish to apply for international protection due to a risk of persecution based on political opinion, as active members of the Islamic Revival Party of Tajikistan, that they did not read nor signed the official note and that they were returned to Ukraine.

Before the European Court of Human Rights (ECtHR) they invoked Article 3 (prohibition of inhuman or degrading treatment) of the European Convention, as they were denied access to the procedure for claiming asylum in Poland and they were sent to Ukraine, which was not a safe country for them because the asylum procedure in Ukraine was inadequate, lacked the necessary guarantees and posed a risk of “chain refoulement” to Tajikistan. They also invoked the inadequate conditions of reception for refugees in Ukraine which was a risk of inhuman and degrading treatment.

The ECtHR concluded that there was a violation of the procedural limb of Article 3 of the Convention as no procedure was initiated at the border crossing to examine the applications for international protection and the applicants were sent back to Ukraine without an examination of whether this was a safe country for them and whether they would have access to an effective and adequate asylum procedure there, or whether they would be exposed to a risk of chain refoulement.

It noted that the general principles concerning non-refoulement and the return of asylum applicants, the procedural guarantees and the obligations of the expelling State were all summarised in the case of M.K. and Others v. Poland (Nos 40503/17 and others, 23 July 2020). It further noted that the duties of the expelling State under the Convention may differ depending on whether the applicant is to be removed to the country of origin or to a third country (Ilias and Ahmed v. Hungary [GC], No 47287/15, 21 November 2019) and that there is an obligation for the authorities not to deport if substantial grounds have been shown for believing that such action would expose the person, directly or indirectly, to treatment contrary to Article 3. Furthermore, in case of removal to a third country without examining the asylum request on the merits, the authorities must examine whether or not the individual will have access to an adequate asylum procedure in the receiving third country protecting the person against refoulement. In addition, if the guarantees are insufficient, there is a duty for the authorities not to remove the person to the third country concerned. The court also highlighted that in M.K. and Others v. Poland it was held that pending the examination of an application for international protection, access to the territory cannot be denied when the person arrives at a border checkpoint and claims a risk of being subjected to ill-treatment. In the present case, the court concluded that the applicants were not provided with effective guarantees against exposure to a risk of being subjected to inhuman or degrading treatment.

The court noted that the Polish authorities should have either allowed the applicants to remain in Polish territory pending the examination of their asylum application or, before sending them back to Ukraine, they should have examined whether Ukraine was safe for the applicants and whether they would have access to an adequate asylum procedure there. The court also noted that the domestic administrative courts acknowledged several shortcomings in the domestic procedure, specifically that the border authorities failed to gather the necessary evidence to establish whether the applicants intended to apply for international protection and turned the applicants away on the basis of a summary official note which was not read and or signed by the applicants. Furthermore, the appeal to the administrative courts did not have automatic suspensive effect so the situation of the applicants was not significantly changed after the courts’ conclusion.

The applicants also invoked Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the Convention and claimed that the decisions refusing them entry into Poland were part of a wider policy of refusing the lodging of applications for international protection from persons presenting themselves at the eastern border checkpoints. The ECtHR found a violation of Article 4 of Protocol No. 4 to the Convention, noting that a decision issued at border checkpoints to refuse the entry of applicants into Poland constituted an “expulsion”, that they attempted to enter the territory legally at a border crossing point with border checks, that the decisions issued to them did not examine their fears of persecution and that they were not at fault for the state’s refusal to examine their arguments. The court concluded that those decisions refusing entry into Poland constituted a collective expulsion since they were not taken with proper regard to the individual situation of each applicant and were part of a wider policy of not receiving applications for international protection from persons presenting themselves at the Polish‑Ukrainian border and of returning those persons to Ukraine, in violation of domestic and international law.

Lastly, the applicants invoked Article 13 (right to an effective remedy) in conjunction with Article 4 of Protocol No. 4 to the Convention, complaining that although they had the right to appeal the domestic decisions, the decisions refusing them entry to Poland were enforced immediately and their appeals did not have automatic suspensive effect. The ECtHR found a violation of Article 13 in conjunction with Article 4 of Protocol No. 4 to the Convention, holding that an appeal against a refusal of entry and a further appeal to the domestic administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect (M.K. and Others v. Poland) and the Government of Poland did not indicate any other remedies which might satisfy the criteria under Article 13.