Court: Border Guard violated international law by pushing Iraqi migrants back

On September 15, 2022, The Voivodeship Administrative Court in Białystok ruled that Polish Border Guard - which 12 months earlier had ordered three Iraqi citizens to return back towards the Belarusian border (thus carrying out a so-called pushback) - had done it in violation of the law, because it had been done on the grounds of a faultily issued ordinance.

Complaints against the Border Guard - formally issued against the chief Michałów border station - had been filed by the Iraqis themselves and by the Commissioner for Human Rights. The Białystok court heard the complaints a joint case and found them justified.

The Commissioner for Human Rights has now released a written justification to the ruling in said case. It's been published by "Gazeta Wyborcza".

In the document, the court says the Border Guard was guilty of nonfeasance and "automatic and arbitrary" decision to apply lower-rank provisions (an ordinance - edit.), which cannot override provisions of national or EU laws, nor international agreements binding for Poland, and especially the Polish constitution.

"Gazeta Wyborcza" also quoted Polish Ombudsman's "conduct recommendations that the Border Guard should adopt". One of them states that if a foreigner wishes to file for international protection, the Border Guard should allow them to file a request as soon as possible, and most importantly - to observe the ban on expelling such persons from the country (non-refoulement rule - edit.). In case when someone does not demand international protection, the Border Guard should first examine the lagality of the person's stay in Poland, and in case of it being illegal - to launch an administrative procedure of ordering said person to leave the country.

According to the court, it was the Border Guard's duty to ignore the ordinance and follow the provisions of the national rank law, which include the non-refoulement rule. This is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution.

The court also found that if a rule is specified in the international and EU laws, then national laws cannot restrict or suspend its application. This hierarchy has been enshrined in the constitution.

Furthermore, the court argued that the decision to apply the lower-rank regulations, and at the same to ignore national laws and international agreements, had been a serious violation of the law.

Finally, in the court's opinion, by not looking into the individual situation of the plaintiff and her family, the Border Guard violated the ban on mass expulsion of aliens included in Article 19 of the Charter of Fundamental Rights of the European Union and Article 4 of Protocol No. 4 to the European Convention on Human Rights.