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State border protection legislation in an era of migration crisis

Introduction - migration crisis of 2015

The influx of people from Asia and Africa to European countries is certainly by no means new. Until the middle of the second decade of the twenty-first century, it mainly concerned the former colonial empires, e.g. Great Britain, France, Belgium, the Netherlands and Spain, as well as Germany, which, with its developed social policy, encouraged the migration of Turks and Serbs, among others. The purpose of migration was to improve living conditions by taking up employment in Western European countries. Migration presented in this way can be considered acceptable and harmless due to the fact that potential migrants intend to work in the destination country. However, this process has been disrupted.

In 2015, a migration crisis began in Europe - an uncontrolled influx of migrants from Asia and Africa started. The European Union and the individual Member States were legally and organisationally unprepared, despite the regulations in force, the so-called Dublin Regulation (Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities, drawn up in Dublin on 15 June 1990[1]) and state laws on illegal border crossings.

In addition, the inept political response (“Wir schaffen das” – meaning we can do it) and the invitation of refugees by Angela Merkel on 31 July 2015, when there were already 300.000 refugees in Greece, Spain and Hungary, led to a migratory catastrophe and the opening of further illegal migration routes[2]. The effect was striking. According to Eurostat, European Union Member States received more than 1.2 million asylum applications in 2015, more than twice as many as in 2014[3].” The European establishment pointed out that these were refugees from Syria and should be allowed in unchecked. This was a mistake. In fact, according to figures for January-June 2017, as many as 71.9% of all refugees arriving in Europe via the Mediterranean were men, 11.2% were women and 16.9% were children[4]. Moreover, among the so-called refugees, people with links to terrorist organisations - Islamic State or Al-Qa'ida - have tried to enter Europe[5].

As a result of the actions taken by the European Union establishment in 2015, we are still facing migration crises in Europe today.


New migration routes

Initially, the migration crisis only affected southern Europe, i.e. Spain, Greece, Italy and Serbia. However, migrants have been pushing towards Western European countries with well-developed social policies, i.e., Germany, Austria, and Sweden. On this basis and the above data on the structure of migration, it should be concluded that actual refugees were only a fraction of the total number of migrants. Most of them came to Europe in order to enjoy social benefits and a better life rather than in fear of armed conflict or persecution.

The policy of the German leadership in the European Union under the banner of 'Wir schaffen das' in the following years has led to the creation of new migration routes. Significantly, the European Union, after nine years of crisis, is still unable to take adequate legal and administrative measures to prevent illegal migration.

Currently, migrants from Asia and Africa have several ways to get to Europe, i.e. there are several migration routes:

  • West African route - from Morocco to the Canary Islands;

  • Western Mediterranean route - from Morocco to Spain (mainly via the Mediterranean or less frequently through Ceuta or Melilla);

  • Central Mediterranean route - from Algeria, Tunisia or Libya to Italy (via the Mediterranean);

  • Eastern Mediterranean route (by sea via the Mediterranean Sea from Turkey to Greece, Italy or Cyprus; by land from Turkey to Greece or Bulgaria);

  • Balkan route - from Serbia to Hungary or from Serbia to Croatia, then Slovenia;

  • Eastern European route - from Ukraine or Belarus to Poland and from Belarus to Lithuania and Latvia;

  • Arctic route - from Russia to Finland or Norway.

Unreasonable migration and asylum policies have led the countries of the European continent to be exposed to an influx of illegal migrants. In 2021, migrants started to infiltrate Europe through the Polish-Belarusian border, in 2022 through the Polish-Ukrainian border and in 2023 through the Finnish-Russian border[6].


Poland in the face of the migration crisis

In June 2021, at the Lithuanian-Belarusian and then the Polish-Belarusian border, the process of organised smuggling of migrants and refugees to the European Union from Iraq, Afghanistan and other countries of the Middle East and Africa, among others, began. The aforementioned state of affairs came as a huge and unexpected surprise to everyone. Therefore, it was necessary to take factual and legal action.

Migratory pressure has been exerted on Poland as a border state of the European Union. This was evidenced by an increase in incidents, including with weapons, provoked by Belarusian authorities.

The Polish government has initiated measures to protect the eastern border of the European Union by sending reinforcements and supplies to the border and supporting patrols. These actions were overwhelmingly supported by citizens. However, a fraction of the government opposition protested and demanded the mass entry of illegal immigrants into the European Union (as an aside, it should be pointed out that Poland, despite its enormous efforts to protect the EU border, was subsequently unfoundedly accused by Germany of contributing to the worsening of the migration crisis ).[7]

Legislation to amend the Act on the Protection of the State Border was undertaken as well. The work was to proceed rapidly in order to provide legislation to respond to a border crisis as quickly as possible. The legislation was to ensure the safety of Border Guard officers carrying out border protection tasks. Moreover, the rules for journalistic work in the border area also should have been regulated.

The Act of 17 November 2021 amending the Act on the Protection of the State Border and certain other acts[8] was signed by the President of the Republic of Poland on 30 November and published in the Journal of Laws on the same day. The amendments came into force on 1 December 2021, with the exception of the provisions regulating the service of Polish Border Guard officers, which came into force on 1 January 2022.


Legal solutions of the Act on the Protection of the State Border 2021

The Act in question dealt with several key aspects concerning border protection and the prevention of illegal immigration. A key point was the possibility of imposing, for a limited period of time, a prohibition on staying in border areas.

According to the aforementioned Act, a residence ban may be introduced in a specific area of the border zone on the basis of a decree of the minister in charge of internal affairs (issued after consultation with the Commander in Chief of the Border Guard), which will specify the area and the duration of the ban[9].

Due to its broad interference with human rights and freedoms, the law provided for a number of exceptions to this prohibition for specific categories of persons. It did not apply to, respectively:

  • residents in the area covered by the residence ban;

  • people doing paid work in the area;

  • students and people using border crossings.

Moreover, the possibility of allowing other persons - in particular journalists - to stay in the prohibited area was introduced. The permission could be issued by the locally competent commander of the Polish Border Guard post.

The Act also provides for the possibility for entities carrying out certain activities in the area covered by the stay ban to apply for compensation for the duration of the ban.

 The amendments also concerned the Act of 12 October 1990 on the Border Guard[10]. The catalogue of direct coercive measures that may be used by the Border Guard officers was expanded to include backpack-incapacitating substance throwers.

Other amendments to the Border Guard Act, which have a strong impact on the functioning of the Polish Border Guard Service, were also introduced in the course of the work, i.e.:

  • the age limit for candidates for service in the Polish Border Guard has been abolished;

  • the professional qualifications required for the appointment of the Polish Border Guard officers to an official position have been regulated;

  • the time limit for the entrustment of official duties in the case of an officer who is entrusted with official duties due to the need to replace another officer due to his/her absence from duty has been abolished.

 

Summary

In conclusion, the migration crisis on the Polish-Belarusian border also required efficient action on the legal level. Therefore, an Act was prepared which comprehensively regulated this issue.

It should be mentioned that the changes introduced are not a one-off. The regulations are existing in the system, and in the event of an increase in migration pressure, the Minister of the Interior and Administration may issue another regulation in response to the current course of events. They will be applicable at the entire external border of the Schengen Area, i.e. the border with the Kaliningrad region, Belarus, and Ukraine.

Nevertheless, it is important to point out the dissenting voices, i.e. Amnesty International and the Helsinki Foundation for Human Rights, which pointed out that the amendment 'contains solutions overlapping with those currently in place under the state of emergency' and 'the broad powers of the Minister of Interior, the lack of security procedures (unlike under the state of emergency) and excessive interference with freedom of movement'.

It is important to mention that Poland tried to send humanitarian aid transports to Belarus, but these were not allowed by the authorities in Minsk.

The situation presented shows that nation-states are definitely better and faster in dealing with the migration crisis, and it is mostly up to them to protect the EU border. Nevertheless, there are different approaches in this matter - some states are exerting themselves to their responsibilities and fulfilling their tasks, while others, in the name of ideology and politics, completely deviate from them while violating EU obligations and national law (as happened in 2015).



Reference

[1] Convention designating the State Responsible For Examining Applications For Asylum Lodged In One Of The Member States of the European Communities, done at Dublin on 15 June 1990, OJ. 2005 No. 24 item 194

[2] A year ago, Chancellor Merkel 'invited' refugees. With this she showed her new political face, https://www.rmf24.pl/fakty/swiat/news-rok-temu-kanclerz-merkel-zaprosila-uchodzcow-pokazala-tym-sw,nId,2261354#crp_state=1 [ accessed 25.01.2014].

[3] Record number of over 1.2 million first time asylum seekers registered in 2015. EUROSTAT.

[4] Mediterranean Sea arrivals from January 2017. UN Refugee Agency. [accessed 2017-06-17].

[5] Charges for involvement in military mercenary service in the Middle East, Prokuratura Krajowa [National Prosecutor's Office], 31 of March 2017 [accessed 2017-06-17] [archived from 2017-04-04]; Terrorists found among refugees in Hungary. polishexpress.co.uk, 2015-09-09 [accessed 2017-06-17].

[6] Arctic refugee route. From Syria to Scandinavia by bicycle across the Russian border. tvp.info, 2015-09-04. [accessed 2017-06-17].

[7] Berlin's double game. Saryusz-Wolski: Germany accuses Poland, while they themselves finance ships smuggling migrants, https://polskieradio24.pl/5/1222/artykul/3254242,podwojna-gra-berlina-saryuszwolski-niemcy-oskarzaja-polske-a-sami-finansuja-statki-szmuglujace-imigrantow [accessed 25.01.2024].

[8] Ustawa z dnia 17 listopada 2021 r. o zmianie ustawy o ochronie granicy państwowej oraz niektórych innych ustaw  [Act of 17 November 2021 amending the Act on State Border Protection and certain other acts], Journal of Laws of 2021 item 2191

[9] Rozporządzenie Ministra Spraw Wewnętrznych i Administracji z dnia 28 lutego 2022 r. w sprawie wprowadzenia czasowego zakazu przebywania na określonym obszarze w strefie nadgranicznej przyległej do granicy państwowej z Republiką Białorusi [Regulation of the Minister of Internal Affairs and Administration of 28 February 2022 on the introduction of a temporary ban on staying in a specified area in the border zone adjacent to the state border with the Republic of Belarus], Journal of Laws of  2022 item 488.

[10] Ustawa z dnia 12 października 1990 r. o Straży Granicznej [Act of 12 October 1990 on the Border Guard], i.e. Journal of Laws of 2023, item 1080, as amended.


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