On 27 March 2025, the amendment of the Act on Granting Protection to Foreigners by the Act of 21 February 2025 entered into force, introducing, among others, a legal basis for temporarily limiting the right to submit an application for international protection by regulation of the Council of Ministers.
The Act of 21 February 2025 introduced the following changes:
- introduction of the definition of the term "instrumentalization" which will include activities undertaken by a country bordering Poland or another entity aimed at enabling foreigners to cross the external border in violation of the law. This applies in particular to the use of violence against state officials and soldiers of the Polish Armed Forces protecting the border or the destruction of border infrastructure, which may result in the destabilisation of the internal situation on the territory of Poland.
- introducing a legal basis for a temporary restriction of the right to submit an application for international protection - Article 33a(1) of the Act on granting protection specifies the cumulative grounds for a temporary limitation of the right to submit an application for international protection:
1) instrumentalisation takes place, within the meaning of Article 2(6a);
2) actions taken within the framework of instrumentalisation constitute a serious and real threat to the security of the state or society;
3) the introduction of this restriction is necessary to eliminate a threat to safety or society and other measures are not sufficient to eliminate it.
A temporary restriction of the right to submit an application for international protection may be introduced by means of a regulation of the Council of Ministers, issued at the request of the minister of internal affairs. This regulation will specify the period of validity of the temporary restriction of the right to submit an application for international protection and the section of the (external) border on which it will be applied.
The minister for internal affairs must inform the parliamentary committee responsible for internal affairs (currently the Administration and Internal Affairs Committee) about filing the application with the Council of Ministers no later than the day following its filing.
The period for which it will be possible to introduce a temporary restriction of the right request asylum may not exceed 60 days. However, if the reasons for introducing this restriction do not cease, its validity period may be extended for a specified period, not longer than 60 days, after the Sejm consents to this extension. If the reasons for introducing a temporary restriction of the right to submit an application for international protection cease to exist before the period for which the restriction was introduced expires, it may be lifted on the entire section of the border on which it is applied, or on part of it.
The extension and the earlier lifting of the temporary restriction must also be done by regulation of the Council of Ministers.
During a temporary restriction of the right to submit an application for international protection, the Border Guard will not accept an application for international protection.
However, there are exceptions for specific categories of persons:
1) unaccompanied minors (Article 2(9a) of the Act on granting protection);
2) pregnant women;
3) persons who may require special treatment, in particular due to age or a health condition;
4) persons in respect of whom circumstances occur which, in the opinion of the Border Guard, clearly indicate that he or she is at real risk of suffering serious harm in the country from which he or she came directly to the territory of Poland;
5) citizens of the country using instrumentalisation from whose territory foreigners come to Poland.
If a person who falls under at least one of the above exceptions, were to engage in conduct that would require the use or application of direct coercion measures, the use of weapons or other weapons immediately after crossing or attempting to cross the border using violence and in cooperation with other persons, these exceptions will not be applied and the application for international protection will not be accepted.
Additional changes to the asylum law introduced by Act of 21 February 2025 include:
3. repealing the provision of Article 33, Section 1a of the Act on Granting Protection - this provision was added by the Act of 14 October 2021 amending the Act on Foreigners and establishes the basis for the Head of the Office for Foreigners to leave an application for international protection without consideration in certain cases. It was repealed on the date of entry into force of the Act.
4. introducing two additional grounds for depriving a foreigner of refugee status:
1) the foreigner constitutes a threat to the security of the country in which he or she resides;
2) the foreigner has been convicted by a final judgment of a particularly serious crime, other than a crime against peace, a war crime or a crime against humanity within the meaning of international law and constitutes a threat to the society of the country in which he or she resides.