Poland's ban on asylum — a new low

On 21 February, Polish MPs overwhelmingly voted in favour of a mechanism for the suspension of the right to submit asylum applications.

The suspension is to be enacted through executive action by the government in the event of the so-called ‘instrumentalisation of migrants’.

The measure is quite clearly at odds with the Polish Constitution, international law, and the Common European Asylum System (CEAS), which by no means allows for such a move—neither now nor under the Migration Pact (which will become applicable next year).

The statute is now expected to be approved by the Senate — the upper chamber of parliament — and subsequently signed into law by the president.

The passage of this statute, along with the circumstances surrounding it, marks the most recent and most profound step so far in the erosion of the CEAS.

The Polish regulation follows a similar Finnish measure and de facto corresponding practices of other member states, not least those bordering Belarus or Russia.

What is especially concerning, however, is that while systemic breaches of the CEAS have long been tacitly accepted by the European Commission, recent weeks have seen an unprecedented campaign by both the commission and the European Council to justify a legally indefensible move.

This has been done in defiance of the plain language of EU legislation and the rulings of the European Court of Justice (ECJ).

We are witnessing a full-blown rule-of-law crisis at the EU level when it comes to migration and asylum.

Justifying the legally unjustifiable

The newly passed Polish statute is at odds with international law and the CEAS on multiple counts. Most prominently, it violates the right to asylum (Article 18 of the Charter of Fundamental Rights) and the principle of non-refoulement.

This latter principle, enshrined in Article 78 of the Treaty on the Functioning of the European Union (TFEU), many other legal instruments comprising the CEAS and multiple other sources of international law, prohibits the removal of individuals to territories where they could be subjected to cruel or inhumane treatment.

It is widely recognised as absolute, meaning that no circumstances can justify overriding it.

In essence, the "suspension of the right to submit asylum applications" allows for the blanket and wholesale denial of rights to a particular cohort of people, purportedly ‘instrumentalised’ by Belarus and Russia.

It bears all the hallmarks of collective punishment, effectively assuming that all those ‘instrumentalised’ are a threat and, in principle, must be immediately removed.

It represents a striking negation of the focus on the individual, which remains a cornerstone of the very idea of human rights.

When accompanied by pushbacks, this measure poses fundamental threats to the lives and dignity of those affected, as events along the EU-Belarus border have already demonstrated. As such, it is overwhelmingly criticised by human rights groups as well as national and international human rights bodies.

Despite their clear legal violations, the commission appears to have endorsed the Polish and Finnish statutes, while the European Council "expressed its solidarity with Poland and with member states facing [instrumentalisation of migrants]" just days after the Polish plan to suspend the right to asylum was first introduced. "Exceptional situations require appropriate measures", the European council conclusions of 17 October 2024 stated. 

More strikingly, in its communication to the parliament and the council issued "to support member states to counter hybrid threats at the eastern EU border", the commission went to considerable lengths to construct a legal argument in favour of the Polish and Finnish regulations.

Among many half-truths and legally-unsound arguments, one in particular stands out: the implication that Article 72 TFEU — concerning states’ competence to uphold law and order and internal security — justifies an asylum ban in the event of a "hybrid attack".

This might even sound plausible if the ECJ had not explicitly ruled otherwise in arguably the most relevant case to date — concerning Lithuania’s early response to irregular migration from Belarus from 2021 onwards.

The law is invoked selectively to fit the political need of the moment.

What’s next?

Recent developments in asylum law and practice across Europe demonstrate a breakdown of the relevant common legal framework and a direct assault on corresponding international law.

Perhaps most importantly, the Migration Pact, after years of negotiations, appears set to effectively become little more than a set of non-binding recommendations, potentially disregarded across the board by member states and unenforceable at the EU level.

It is truly astonishing to watch how the EU Commission, the so-called ‘guardian of the treaties’, after investing significant political capital in championing the pact for years, now engages in convoluted legal reasoning to support measures that directly undermine this very legislative package, alongside a set of fundamental rights.

We are witnessing the disintegration of the common asylum policy, with broad support for its demise.