Instrumentalisation of asylum and pushback at the border: Poland pushes back on the EU Pact

Guest post by Monika Szulecka and Witold Klaus. Monika Szulecka is assistant professor at the Institute of Law Studies of the Polish Academy of Sciences, member of the Migration Law Research Centre ILS PAS. Witold Klaus is associate professor at the Institute of Law Studies of the Polish Academy of Sciences, head of the Migration Law Research Centre ILS PAS, Co-President of Migration Consortium. This post is part of a thematic series on the EU Pact on Migration and Asylum, edited by Giuseppe Campesi and José Angel Brandariz. Read the introduction here.

When ad hoc malpractice becomes a legitimised conduct at the EU eastern border

As Giuseppe Campesi very accurately pointed out at the international workshop held by the University of Bari, the new EU Pact on Migration and Asylum does not contain novelties, but instead transfers the worst national practices to the EU level. In this short contribution, we support this claim by presenting the Polish perspective. First, we briefly characterise the arrivals of forced migrants to Poland. Then, we focus on the instrumentalisation of migration and how this card has been played by Polish governments since 2021. 

Asylum seekers pushed back at Polish borders

For a long time, Poland was a peripheral country of the main forced migration routes to Europe. The largest group seeking international protection in Poland were Chechens fleeing Russia since the early 2000s, but due to the low refugee recognition rates, among other issues, many of them decided to migrate further and seek refuge in western EU countries. 

Until 2020, the majority of asylum seekers arriving in Poland followed the path desired by policymakers, i.e. they requested asylum upon entry through a border crossing point. Despite that, they experienced repeated refusals of entry. The policy of pushing them back to Belarus became particularly visible in 2016, and in 2020 the European Court of Human Rights identified it as a form of collective expulsion. 

In response to the rising number of people crossing the ‘green border’ in an irregular manner since mid-2021, practices of pushbacks at the Polish-Belarusian border changed their face. The first reaction to the increased migration pressure was to follow the usual procedures, i.e. to detect irregular border crossers and subject them to administrative detention. However, soon detention centres became overcrowded (despite the fact that their capacity had been increased fourfold) and the Border Guard started to push people back to Belarus, forcing them to irregularly cross the border backwards. Asylum claims of people on the move remained mostly neglected by the front-line officers at the border.  

Poland followed the path of other countries at the EU eastern border, like Lithuania and Latvia, both in terms of the violent behaviours of enforcement agents toward people on the move and in an attempt to ground such practices in the national legislation. Such a move was widely condemned by human rights defenders and later found illegal by national courts. They found the practice in breach of the non-refoulement principle.  The courts also found the legal provisions serving the Border Guard to justify summary removals not compliant with international law. However, this brought no changes to the legal framework or the practice of pushbacks.

‘Hybrid war’ and instrumentalisation of migration

From the very beginning, Polish authorities saw people on the move attempting to enter Poland from Belarus as being lured by the Belarusian regime with the promise of easy access to the EU territory, ‘orchestrated’ by Aleksandr Lukashenka and Vladimir Putin, and as a ‘weapon’ in the hands of the regimes. This contributed to the narrative of a ‘hybrid war’ presented to the public and other EU member states, which had a broad resonance as the term ‘instrumentalisation of migrants’ was used by President von der Leyen already in November 2021. Other EU treaty bodies’ followed suit, referring to the situation at the eastern border as a “state-sponsored illegal migration” whose aim was to “use migrants as a tool to destabilise the West”. As a result, in December 2021, the Commission presented a draft of provisional emergency measures in favour of Latvia, Lithuania and Poland as a “response to instrumentalisation of migrants at external borders”. This document proposed to waive several safeguards shielding people on the move, including those protecting the very existence of the non-refoulement principle. 

This law was not adopted, though. Partially, because the Polish government criticised it as stopping just halfway through by failing to provide a legal framework for the suspension of asylum procedures when the instrumentalisation happens. Nonetheless, it laid grounds for more permanent solutions, like the EU Regulation addressing situations of crisis and force majeure in the field of migration and asylum, adopted on May 14, 2024. The definition of instrumentalisation included in Article 1 section 4 mirrors the situation at eastern borders as it requires (1) mass arrivals of third-country nationals at the EU external border which is (2) animated by a third country or a hostile non-state actor which encourages or facilitates the movement and (3) it aims at destabilising the Union or a Member State. 

Interestingly, despite the significant change in the political climate in Poland when the right-wing government was replaced by a pro-European broad coalition of conservative, centrist and left-wing parties in December 2023, the Polish official stance towards the Pact and its inadequate solution did not change. The new government upheld its reservations regarding the Pact in May 2024, stressing that border procedure is not the proper response to instrumentalised migrants and that Poland expects the suspension of asylum procedures when such a situation occurs. The government proposed the law enabling temporary and territorial suspension of the access to the asylum procedures and in February 2025 this law was accepted by the lower chamber of the Polish parliament. 

Militarisation of the Polish border

An immediate effect of the appearance of people on the move at the Polish border was its militarisation. 

First, the government declared a state of emergency in September 2021 followed by the introduction of a no-entry zone along the border where only local inhabitants and law enforcement agents were permitted to stay. Except for Polish Ombudsman employees, all other (humanitarian) actors, press and even UNHCR were forbidden to enter the zone under penalty of a fine. In January 2022, the Polish Supreme Court declared the zone illegal, but the regulation remained in force until the end of June 2022. The zone (this time narrower and shorter) was reintroduced in June 2024 by the new government (whose representatives, when in the opposition, criticised both the zone and its unconstitutional legal framework). 

Second, a physical barrier at the border consisting of rolls of razor wire unfolded along the border in autumn 2021. In 2022 it was successively replaced by a five-metre-high wall topped with razor wire covering about 200 km of 418 km of the Polish-Belarusian border. The remaining part, with rivers and swamps, was covered with 3-metre-high rolls of razor wire. The barrier is additionally equipped with advanced electronic surveillance systems. In June 2024, the government declared further militarisation.

Third, thousands of troops consisting of border guards, police officers and soldiers were deployed at the border zone. The presence of military and police was legalised in July 2024 only. What’s more, since 2024, officers who use weapons extensively and in violation of the proper regulations are now exempted from criminal liability. 

Conclusions

As the history of border walls has proved, they do not stop migrants; they usually contribute to the growth of human smugglers’ business and increase demand for it, as well as cause harm to those really in need of protection, lacking legal pathways to enter safe territories. The Polish case has not been an exception. The wall constructed at the border made the crossing more difficult, but it did not stop people on the move. Based on the scarce available data regarding this situation, coming from the German Federal Police, only between May 2021 and May 2023 more than 22,000 people entered the EU through its eastern border, crossed the entire territory of Poland and were detected in Germany. 

Legal changes and practices introduced in Poland have been executed without asking the EU for permission. However, they were at least tacitly supported by the Commission. Now, as the Polish government claims, they are even accepted by the EU leaders who express solidarity with Poland, remembering that in 2022 it accepted 3,5 million people fleeing Ukraine and that for three years, as the Polish government emphasises, it has been facing the persistent instrumentalisation of migration at the Belarusian-EU border. However, Polish authorities neglect the fact that such practices and legal changes result in the breach of the non-refoulement principle. They already contributed to the humanitarian crisis at the border and they will never be supported by human rights defenders, as the mobilised civil society has proved to remind the government what fundamental rights are.

The text has been supported by the project ‘FAiR – Finding Agreement in Return’ financed by the European Union within ‘Horizon Europe’ programme.