P.K.O., an applicant of undisclosed nationality, entered Poland illegally and was transferred to a hospital due to medical needs. During his hospital stay, he signed a document expressing his intention to apply for international protection in Poland, which his attorney subsequently submitted to the Border Guard along with a letter dated 6 August 2025.

The Border Guard did not accept his application and instead issued a return decision. The applicant appealed this decision on 28 October 2025, requesting suspensive effect. Pending the appeal, he was detained in a Guarded Centre for Foreigners. Pursuant to Article 403(2)(2a) of the Law on Foreigners, on 6 November 2025 the District Court in Kętrzyn extended the applicant’s detention from 11 November 2025 until 8 February 2026. This decision was subsequently appealed by the applicant before the Regional Court in Olsztyn (hereafter, the court or the court of appeal).

The Regional Court upheld the applicant’s appeal and quashed the District Court’s decision to extend detention. The court established that P.K.O. had clearly applied for asylum, initially during his hospital stay and subsequently while in detention. The court of appeal noted that his application had not been accepted pursuant to amendments to the Act on Granting Protection to Foreigners in the Republic of Poland (the Asylum Act) introduced on 21 February 2025, and proceeded to analyse these provisions. Citing the newly introduced Article 33a of the Asylum Act, the court explained that the right to submit an application for international protection may be temporarily restricted in cases of instrumentalisation of migration, where such instrumentalisation constitutes a serious and real threat to state security or public order, provided the restriction is necessary. The same article sets a maximum duration of 60 days for such restrictions, which may be extended, and provides that the restriction is implemented via a Council of Ministers Regulation specifying the location and period of validity, pursuant to Article 33a(5) of the same act. The court recalled that the restriction was first introduced through the Regulation of 27 March 2025, and subsequently extended by Regulations of 23 May 2025 and 24 July 2025.

The Regional Court in Olsztyn further found that no international instrument binding on Poland permits depriving an individual of the right to submit an application for international protection based on the circumstances in which the individual reached the state border, such as migrant instrumentalisation. The court noted that Article 9 of the 1951 Refugee Convention does not allow for the general suspension of asylum procedures, while the principle of non-refoulement enshrined in Article 33(1) of the Convention obliges states to ensure the safety of foreigners, which is not dependent on the submission of an application for international protection. Article 33(2) allows for non-application of the non-refoulement principle only in respect of persons considered a danger to the security of the country or it’s community, based on a final judgment for particularly serious crimes. The court observed that migrant instrumentalisation does not constitute an exception to the principle of non-refoulement, which is absolute and not subject to arbitrary discretion.

The court of appeal also referred to Article 3(1) of the 1984 United Nations Convention against Torture, and the 2004 Istanbul Protocol. It further cited that the principle of non-refoulement is embedded in Article 19(2) of the Charter of Fundamental Rights of the European Union, Article 5 of the Return Directive, Articles 3 and 4 of the Schengen Borders Code, and Article 9(1) of the recast Asylum Procedures Directive (APD), which grants applicants the right to remain in a Member State until the determining authority has made a decision in accordance with the procedures at first instance. The court held that refusal to accept an application for international protection pursuant to Article 33b(1) of the Asylum Act deprives applicants of all guarantees related to safe stay in Poland, whether under the Refugee Convention or the APD.

At the national level, the Regional Court in Olsztyn noted that the right to international protection is enshrined in Article 56(2) of the Polish Constitution, while Articles 31(3) and 37(2) of the Constitution establish the principle of statutory exclusivity, requiring that any limitation of constitutional rights be enacted only by a law of statutory rank, which must contain all essential elements of the restriction. This means that sub-statutory regulations may only concern technical matters that do not affect the essence of the limitation.

The court of appeal observed that Article 33a(5) of the Asylum Act provides a statutory delegation to the Council of Ministers to limit, by regulation, the constitutional right of foreigners to seek international protection. It found that the statutory provision does not specify the territorial scope, duration, or maximum number of extensions for such restriction, and thereby fails to regulate any detailed principles for restricting the constitutional right to seek international protection.

Applying these principles to the case, the Regional Court in Olsztyn found that the Border Guard refused to accept the applicant’s asylum request even though it was not submitted from the border section with the Republic of Belarus but first from a hospital and subsequently, from a detention facility. The court inferred that the temporary restriction of the right to apply for asylum was effectively applied countrywide, exceeding the scope permitted under Article 33a of the Asylum Act. The court concluded that the 27 March 2025 Regulation and its subsequent extensions imposed a de facto universal restriction, exceeding the statutory delegation under Articles 31(1) and 92(1) of the Constitution. The court further recalled that, pursuant to Article 178(1) of the Polish Constitution, judges are independent and subject only to the Constitution and statutes, and are required to conduct incidental review of sub-statutory acts, such as the regulation implementing the restriction. It noted that, while such review does not annul the act, it determines whether it may be applied in a specific case.

In light of the above, the court of appeal held that there were no legal grounds to refuse acceptance of the applicant’s request for asylum and, as a result, the extension of his detention followed an incorrect procedure. The court pointed out that the detention of asylum applicants must be based on the Asylum Act, whereas in this case it had been adopted under the Law on Foreigners. The court found this to constitute a procedural breach that cannot be remedied through judicial review, as doing so would violate the adversarial principle and the applicant’s right to respond to changes in the grounds for detention.

Citing the Supreme Court’s judgment in R.Z. and S.Z. of 20 June 2023, the Regional Court in Olsztyn emphasised that detention of asylum applicants serves a different purpose from migratory detention, as it does not relate to border protection or combating illegal migration, and upheld the applicant’s appeal, revoking the detention measure.