Me in the asylum procedure. About the rights and responsibilities under the procedure.

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3 Prof. Irena Rzeplińska Ewa Ostaszewska - Żuk Karolina Rusiłowicz Maja Tobiasz Jacek Białas Me in the asylum procedure. About the rights and responsibilities under the procedure. Warsaw, 2012

4 Me in the asylum procedure. About the rights and responsibilities under the procedure. Concept: Prof. Irena Rzeplińska Ewa Ostaszewska - Żuk Karolina Rusiłowicz Maja Tobiasz Jacek Białas This publication was prepared under the "Lawyers for refugees V" project, supported by the European Refugee Fund and the state budget. The European Commission is not responsible for the contents of this publication. Published by: Helsińska Fundacja Praw Człowieka ul. Zgoda 11, Warszawa tel. (0 22) , fax (0 22) ISBN Cover designed by: Kolektyw Wizualny Translated and proofread by: COMTEX Typeset by: Kolektyw Wizualny Printed by: Duchno Teresa Duchnowska Warsaw, 2012

5 Introduction Refugees, migrants and foreigners in general have become a permanent feature of Poland s landscape: of the places where we live, work and spend holidays. This guide is intended mainly for those foreigners who seek international protection. However, it will also be useful for all those who work with foreigners: administration officers, employers hiring foreigners, people who teach foreigners, treat their illnesses and deal with them in various situations. The guide is written from the perspective of a foreigner, a person who is seeking answers and explanations and knows next to nothing about the asylum procedure or other forms of international protection, or about situations she/he may face, such as detention or deportation. I think it is very important that the guide stresses that all information provided by a foreigner to officers, social workers and lawyers during asylum proceedings is strictly confidential. No such information can be passed to the refugee s home country. The very title of the guide, Me in the asylum procedure, says much about its contents. The authors are experienced lawyers of Free Legal Assistance to Refugees and Migrants Programme of the Helsinki Foundation for Human Rights. The questions posed by the foreigner in the guide are questions we hear every day issues raised by foreigners, migrants, refugees, issues which they do not understand and which they bring up most often in conversations; these issues are difficult to explain to a person who has a different legal culture and different customs and speaks a different language. One of these issues is getting married in Poland; although unrelated to the asylum procedure, it is nevertheless often raised by foreigners and often poses certain practical problems. At the end of the guide there is a list of institutions and non-governmental organizations who provide help to refugees. The list has grown rather long over the 20 years Poland has been granting refuge status to foreigners, which is good there are quite a few places one can turn to for information and advice concerning the often complex problems faced by migrants and refugees in Poland. Irena Rzeplińska, Professor of the University of Warsaw 3

6 Contents SŁOWNICZEK 1. APPLYING FOR ASYLUM p Where can I submit an asylum application? 2. What actions will be taken by the Border Guard once I have submitted my application? 3. What happens after submitting the application? 2. RIGHTS AND RESPONSIBILITIES DURING THE PROCEDURE p What is a TZTC [Temporary Foreigner s ID]? 2. What help am I entitled to as an asylum applicant? 3. Do I have to stay in an accommodation centre? 4. Am I entitled to health care? 5. Am I allowed to work? 6. Can I go abroad during the asylum procedure? 7. What is the Dublin II procedure? 8. A member of my family stays in another European country. How can I reunite with this person? 9. Can I be deported during the procedure? 10. When will the asylum interview take place and what does it consist in? 11. When can I provide evidence? 12. How long will I wait for the decision concerning my case? 13. My case has been dragging on for a very long time What can I do? 3. MINORS p I am a minor Can I submit an asylum application? 2. Where will I stay after submitting an asylum application? 3. Will I be interviewed during the asylum procedure? 4. PROTECTION SCHEMES IN POLAND p What protection can I be granted in Poland? 2. When will I be granted refugee status? 3. Can I claim asylum if I was not in danger when I was leaving my home country, 4

7 but later things changed and now I am afraid to return to my home country? 4. When will I be granted subsidiary protection? 5. When will I be granted a tolerated stay permit? How to apply for a residence card? 5. I HAVE RECEIVED A POSITIVE DECISION WHAT NEXT? p How to apply for a residence card? 6. REFUSAL TO GRANT PROTECTION IN THE REPUBLIC OF POLAND p In what circumstances do the authorities refuse to grant refugee status? 2. In what circumstances do the authorities refuse to grant subsidiary protection? 3. In what circumstances do the authorities refuse to grant a tolerated stay permit? 4. In what circumstances do the authorities decide to deport me from Poland? 7. I HAVE RECEIVED A NEGATIVE DECISION WHAT NEXT? p How much time do I have to make an appeal? 2. What does it mean that the decision has been delivered? 3. How to make an appeal? 4. What will happen once I make an appeal? 5. What decisions may the Council for Refugees take? 6. What can I do if I receive a negative decision from the Council for Refugees? 8. COURT PROCEEDINGS p How much do court proceedings cost? 2. Can I file a complaint with the court if I have no money? 3. I have received free legal advice from the court What next? 4. Can I be deported during the court proceedings? 5. Am I entitled to social assistance and to a Temporary Foreigner s ID (TZTC) during the court proceedings? 6. Do I have to be present in the court during the hearing? 7. Will an interpreter be present during the hearing? 8. What decisions can the court make? 9. The court has dismissed my complaint What next? 10. Final complaint What next? 9. FILING A NEW ASYLUM APPLICATION p My asylum procedure has been completed Can I file a new asylum application? 2. Where should I file my new application? 5

8 3. Will an interview take place as part of the new procedure? 4. Am I entitled to social assistance and to a Temporary Foreigner s ID (TZTC) during the new procedure? 5. What decisions may the authorities take during the new procedure? 10. DETAINING AN ASYLUM SEEKER p Can I be apprehended by the Border Guard? 2. Will I be placed in a detention centre or in jail? 3. What is the difference between a detention centre and jail? 4. Am I allowed to contact my lawyer or non-governmental organizations while in a detention centre/jail? 5. Will I be released from the detention centre/jail if I submit an asylum application while staying there? 6. When will I be released from the detention centre/jail? 11. GETTING MARRIED IN POLAND p What documents do I need to get married in Poland? 2. Is it true that I cannot get married in the Republic of Poland if I do not have the documents necessary to get married? 3. What are the proceedings in the Register Office? 4. How long will I have to wait to get married? 5. Getting married What next? 6. Will my marriage affect my asylum proceedings? LIST OF NON-GOVERNMENTAL ORGANIZATIONS p. 58 Bibliography p. 59 6

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10 1Applying for asylum 1 Where can I submit an asylum application? p. 9 2 What actions will be taken by the Border Guard once I have submitted my application? p. 9 3 What happens after submitting the application? p. 10 8

11 1 Where can I submit an asylum application? Your asylum application must be submitted through the Border Guard (hereafter referred to as the BG) to the Head of the Office for Foreigners (hereafter referred to as the Head of the OF). You should inform the BG officer that you want to apply for refugee status; use an internationally recognized term, such as asylum. On arrival to Poland, you can apply at the border or at an airport. If you are already in Poland, you should apply through the Nadwiślański Branch of the BG in Warsaw, 33 Taborowa Street (OF building). If you are in a detention centre for foreigners (hereafter referred to as DCF), you should apply through the chief of the BG branch with jurisdiction over the area where the DCF or deportation jail is located.! NOTE: You can also submit your asylum application when you are in Poland illegally; however, if this is the case you may be apprehended. MORE INFORMATION -> DETAINING AN ASYLUM SEEKER p. 51 Asylum application must always be submitted in person. Family members (spouse and minor children supported by their parents) may submit a joint application which will be considered as one case. 2 What actions will be taken by the BG once I have submitted my application? A BG officer will photograph you and the people in behalf of whom you are submitting the asylum application, and will take your fingerprints (this only refers to persons aged over 14 years). You will also have medical examination. The application must be submitted on a special form and a BG officer will conduct a short interview with you to get information concerning: your personal details, how you entered Poland, the country you came from and general reasons which made you apply for refugee status in Poland. During this short interview with the BG officer you will have the right to speak your own language, so an interpreter should be provided if needed. The BG officer should also provide you with information regarding the rules of the asylum procedure, your rights and obligations, and give you contact details of organizations providing help to refugees. 9

12 p. 58 LIST OF NON-GOVERNMENTAL ORGANIZATIONS IMPORTANT: Provide as detailed answers to the questions as possible because this testimony will be later compared with your testimony given during your interview in the Office for Foreigners (hereafter referred to as the OF), which is the most important part of the asylum procedure. Economic or financial reasons for leaving your home country are not in themselves sufficient grounds for providing protection to you. If you have any documents to support your testimony, you should present them.! IMPORTANT! The BG officer cannot refuse to accept the asylum application or decide that it is unsubstantiated. The Head of the OF is the competent authority to consider your application and make that decision. 3 What happens after submitting the application? Once you decide to apply for refugee status, the visa which allowed you to enter Poland (if you have one) will be revoked. Your travel document (passport) will be taken from you by the BG and deposited in the OF for the time of the proceedings. In return you will get a Temporary Foreigner s ID (TZTC). p. 13 more information -> What is a TZTC [Temporary Foreigner s ID]? You are entitled to social assistance and health care during the proceedings. p. 16 more information -> Do I have to stay in an accommodation centre? Am I entitled to health care? Remember to notify the OF or the Council of each change of your address so as to ensure that each letter concerning the case is delivered to you. Among others, you will receive by mail a summons for an interview, which is the most important part of the asylum procedure. p. 19 more information -> When will the asylum interview take place and what does it consist in? 10

13 ! IMPORTANT: No data indicating that an asylum procedure involving you took place, or that you were granted or refused refugee status or subsidiary protection, can be provided to the authorities of your home country. notes 11

14 2 during Rights and responsibilities the procedure 1 What is a TZTC [Temporary Foreigner s ID]? p What help am I entitled to as an asylum applicant? p Do I have to stay in an accommodation centre? p Am I entitled to health care? p Am I allowed to work? p Can I go abroad during the asylum procedure? p What is the Dublin II procedure? p A member of my family stays in another European country. How can I reunite with this person? p Can I be deported during the procedure? p

15 10 11 When will the asylum interview take place and what does it consist in? When can I provide evidence? p. 19 p How long will I wait for the decision concerning my case? p My case has been dragging on for a very long time What can I do? p What is a TZTC [Temporary Foreigner s ID]? Once you have submitted an asylum application, your stay in the Republic of Poland is legal. You give your passport to be deposited for the duration of the procedure, and in return you get a document called Tymczasowe Zaświadczenie Tożsamości [Temporary Foreigner s ID] (TZTC), popularly known as a visa. The Temporary Foreigner s ID (TZTC) certifi es your identity and entitles you to stay in Poland for the duration of the asylum proceedings. You will get this document from the BG on submission of your asylum application. The fi rst TZTC is valid for one month. After this period, you should apply to the Head of the OF for a new TZTC, which will be valid for up to 6 months; this should be repeated until the procedure is completed. You should apply for a new TZTC whenever the period of validity of the old one expires or any data contained in it changes. 2 What help am I entitled to as an asylum applicant? During the asylum procedure you are entitled to social assistance provided in the accommodation centre for foreigners or outside it. MORE ABOUT SOCIAL ASSISTANCE >>> p. 30 p. 39 p. 45 In both cases, you should go to the Reception Centre in Podkowa Leśna Dębak (you may get there from Warsaw by the WKD commuter train get off the train at Otrębusy station). 13

16 How to get to Reception Center? Warszawa Śródmieście WKD commuter train station A Stacja WKD Warszawa Śródmieście DWORZEC CENTRALNY [Metro] Centrum To get to the WKD commuter train station: take a tram / bus to Dworzec Centralny [Central Railway Station] / Metro Centrum [Centrum Underground Station] and then take a 10-minute walk. Otrêbusy WKD Tickets are sold at a ticket window at the commuter train station. Remember to punch your ticket on the train! Otrębusy WKD commuter train station mapka dojazdu do ośrodka 3 km 720 the 16th station of the WKD commuter train counting from Warszawa Śródmieście station, just past the Kanie Helenowskie station. Dębak Reception Centre B

17 Temporary Foreigners ID TZTC Template of a Temporary Foreigner s ID [TZTC] issued by the Authority Accepting the Application avers photo of the owner revers Template of a Temporary Foreigner s ID [TZTC] issued by the Head of the Office for Foreigners avers revers 15

18 That is where you should complete all the necessary formalities, i.e. submit an application for social assistance, explain (if applicable) why you do not want to live in an accommodation centre for foreigners and wish to apply for social assistance provided outside the centre. You will be accommodated in one of centres for foreigners located in various parts of Poland, depending on the availability of places. In principle, you will be granted social assistance in a centre for foreigners. Such social assistance consists of: A B C D E F G accommodation, full board or cash equivalent of full board (e.g. if your children go to school). pocket money for small personal expenses, regular money for cleaning and personal hygiene products, a one-time payment or vouchers for clothes and shoes, Polish language lessons and language learning materials, learning resources for children provided with education and care in public institutions, primary schools, junior high schools and high schools, payments for public transport fares for trips made in order to participate in the asylum proceedings, receive medical treatment or vaccination, or in other justified cases). 3 Do I have to stay in an accommodation centre? Not necessarily. You may also apply for monthly payments to allow you to stay outside the centre. Such an arrangement may be made for the following reasons: to ensure the foreigner s safety, with particular regard to the situation of single women; to protect public order; to protect and maintain family relations (if a member of your family resides 16

19 legally in Poland and you would rather live with this person than stay in a centre) 4 to prepare the foreigner for an independent life outside the centre once he/she is granted refugee status. However, you should remember that opting for such an arrangement means that you will have to rent a flat on your own and pay all your living expenses from the money you get from the Office for Foreigners. 4 Am I entitled to health care? Yes you are, whether you stay in or outside a centre for foreigners. Health insurance covers all the medical services available to an insured citizen of Poland, with the exception of treatment in a sanatorium. 5 Am I allowed to work? If the decision concerning your asylum application is not issued within 6 months and you are not responsible for the delay (i.e. as a result of leaving Poland during the proceedings), you have the right to apply to the Head of the OF for a certificate which, together with your TZTC, will give you the right to work legally in the Republic of Poland. The certificate will be valid until your asylum procedure is completed (which means that it will remain valid also when you file an appeal, for as long as your case is being considered by the Council for Refugees). 6 Can I go abroad during the asylum procedure? You should stay in Poland until the final decision concerning your case has been made. Your Temporary Foreigner s ID (TZTC) does not entitle you to cross the border; therefore, if you decide to do that, you may be apprehended for illegal border crossing. Although border controls within the Schengen area have been abolished, the border guards of the Schengen countries control the borderland and are authorized to check if your stay in a particular country is legal. If you go to another EU country on your own initiative after having submitted an asylum application in Poland, it is very likely that you will be deported to Poland.! Remember that illegal border crossing or attempted illegal border crossing is sufficient grounds for the Border Guard to apprehend you, and then for the Court to put you in a detention centre for foreigners or in a deportation jail. 17

20 7 What is the Dublin II procedure? In the European Union, each individual asylum case is considered by only one Member State. It is usually the first EU country which the foreigner seeking refugee status has entered. Therefore, if you have crossed the border of Poland as the first country of the European Union, Poland is responsible for considering your asylum application. If, for example, you have a visa to Spain, but you entered Poland and submitted your asylum application here, Spain is responsible for considering your case.! IMPORTANT! If you are refused protection in Poland, it does not mean that you can go to another EU country and try to get protection there if you do that, you will be turned back to Poland. 8 A member of my family stays in another European country. How can I reunite with this person? If a member of your family lives in another EU country (it does not matter if he/she has been granted refugee status or his/her application is still being considered) and you want to reunite with this person, you should apply to the Head of the OF for launching a Dublin II procedure in your case. You should enclose documents confirming your ties with the family member you want to reunite with (birth certificate, marriage certificate). Next, the Office for Foreigners will request the authorities of the country where the member of your family lives to accept your application.! IMPORTANT! If you want to reunite with a person who has not yet been granted refugee status and his/her application is still under consideration, then you should demonstrate that the family ties between you and that person existed already in your home country. Remember that only the following persons are considered family members: your spouse minor children (if they are not married and are supported by you), your parent or guardian (if you are an unattended minor). You may also reunite with a family member other than the persons listed above if you need their help when you are pregnant, seriously ill or elderly. However, in this event, the state to which you want to be transferred may refuse such a reunion. 18

21 In either case, the Office for Foreigners will inform you in writing about the decision taken by the state you want to go to. This will not be Poland s decision and it will not be possible to appeal against it. However, if any new circumstances emerge you will have the right to apply to the OF to request the authority of the state to which you want to be transferred to take over the responsibility for considering your asylum application. 9 Can I be deported during the procedure? You are protected against deportation from the time of submission of your asylum application until the completion of the procedure, i.e., in principle, until the Council for Refugees issues its decision. Hence if the Head of the OF refuses to grant you refugee status, subsidiary protection or a tolerated stay permit, and decides to deport you from Poland, do not worry. If you appeal against the decision within 14 days, you shall not be deported until the Council for Refugees issues its decision. more information >>> Can I be deported during the court proceedings? p When will the asylum interview take place and what does it consist in? The interview is the most important part of the procedure; during the interview you will be asked detailed questions concerning the reasons why you are seeking refugee status or another form of protection. You will receive by post (or fax if you stay in a centre for foreigners) a letter notifying you of the precise date and time of the interview. If you are staying in a DCF, the interview will take place in the DCF. During the interview, you will have the right to speak a language you understand, hence an interpreter will take part in the interview, if needed. It is advisable to check earlier if the interpreter can speak the same dialect as you. If he/she cannot, you should immediately notify an OF staff member of the problem. Your lawyer, if you have one, may also participate in the interview. You may also submit in advance a request for psychological assistance during the interview, if you feel you will need a psychologist. You will be asked questions concerning the reasons why you left your home country and how you got to Poland. Your credibility is of great significance here, therefore it is very important that you explain in detail why you had to leave your country. It is important to provide, if possible, information that can be verified later (names, 19

22 dates). Make sure that your testimony is not self-contradictory and remember what you testified when submitting your application.! Remember that the OF staff member, the interpreter, your lawyer and the social workers are obliged to keep strictly confidential everything you said during the proceedings. After the interview, you are entitled to a written copy of your interview record which is only prepared in Polish. The interpreter should read the record to you in the language in which you speak. By signing the interview record (you will have to sign it in order to get a copy) you declare that you agree with the contents of the record. That is why it is very important to make sure in advance that you and your interpreter understand each other very well and that everything has been written down correctly in the record. It will not be possible to correct the record later.! Remember that you have the right not to agree with what the record says and/or to add something to the record! If you want to make any changes in your testimony, they should be written down before you sign the record. 11 When can I provide evidence? Documents and other evidence, if applicable, may be presented at any stage of the procedure (but before the decision in the case is issued). Original documents should be presented (if you want to submit copies, you should at least take the originals with you when you go to the Office). You do not have to translate the documents. You have the right to enclose documents prepared in your language if they are relevant to the case, they will be translated by the Office and taken into account.! Make sure that the Office provides you with written confirmation of the fact that you have submitted evidence in your case. 12 How long will I wait for the decision concerning my case? The decision in your asylum case should be issued within 6 months from the date of submission of the asylum application. If the asylum application is considered obviously groundless, the decision should be issued within 30 days. 20

23 If the above decisions have not been issued within these respective deadlines, the Head of the OF should notify you of the reasons for the delay and of the new deadline for the decision. 13 My case has been dragging on for a very long time What can I do? If a decision concerning a new deadline or extension of the deadline is not issued or if your case is dragging on, you have the right to complain to the Council for Refugees (hereafter referred to as the Council). If the Council decides your complaint is justified, it will set a new deadline for the case and order an inquiry to find the reasons for the delay and the persons responsible for it; if necessary, the Council will also order measures aimed at avoiding such delays in the future. notes 21

24 3Minors 1 I am a minor Can I submit an asylum application? p Where will I stay after submitting an asylum application? p Will I be interviewed during the asylum procedure? p

25 1 I am a minor Can I submit an asylum application? If you are less than 18 years old, you are a minor, but you too have the right to submit an asylum application. Having received your application, the BG will request the court of protection to appoint a legal guardian to represent you in the asylum procedure and to place you in a foster care centre. The Head of the OF will make a similar request if the fact that you are a minor emerges during the asylum proceedings. The Head of the OF will also take reasonable steps to find your relatives. 2 Where will I stay after submitting an asylum application? You will be taken by BG officers to a foster family or a foster care centre, and you will stay there until the court of protection makes a ruling. 3 Will I be interviewed during the asylum procedure? You will be interviewed as other foreigners who have submitted asylum applications in Poland; however, your interview will look different than interviews with adult foreigners. Your guardian will be notified in writing about the interview at least 7 days before the interview takes place, so that he/she has the time to advise you about the significance and possible consequences of the interview and about ways to prepare for the interview. Your guardian is entitled to ask questions and put forward propositions. The guardian must also be notified of the possibility to record the interview using audio or video equipment. An interpreter may also be present during the interview. The interview takes place in the presence of the guardian; an adult designated by the guardian, if this does not hamper the proceedings a psychologist or counsellor who prepares an opinion about the mental and physical condition of the minor. more about interview >>> When will the asylum interview take place and what does it consist in? p

26 In addition, before the interview, you have to be advised about: the factual and legal circumstances which may affect the outcome of the proceedings in your case, and the possibility to request that the interview take place in the presence of an adult designated by you. If the decision in your case is negative, you will stay in the foster care centre until you are transferred to a body or organization from your home country whose statutory areas of responsibilities include minors. p. 34 more information >>> I HAVE RECEIVED A NEGATIVE DECISION WHAT NEXT? notes 24

27 4Protection schemes in Poland 1 What protection can I be granted in Poland? p When will I be granted refugee status? p Can I claim asylum if I was not in danger when I was leaving my home country, but later things changed and now I am afraid to return to my home country? p When will I be granted subsidiary protection? When will I be granted a tolerated stay permit? p. 27 p

28 1 What protection can I be granted in Poland? If you have submitted an asylum application, you may be granted one of the following three forms of protection: 1 refugee status, 2 subsidiary protection, 3 a tolerated stay permit. 2 When will I be granted refugee status? You will be granted refugee status if due to justified fear of persecution in your home country you cannot or you do not want to be protected by this country. Such persecution may be related to: race (e.g. the colour of the skin or the fact that you belong to a particular ethnic group), religion (i.a. theistic, non-theistic or atheistic beliefs), nationality (in this context, this term is not narrowed down to being a citizen of a particular country), political views (i.e. having particular views or beliefs concerning states involved in persecution and their methods), belonging to a particular social group (such as women or homosexuals). Persecution may, for example, consist in the following: physical violence and emotional abuse, including sexual abuse; use of legal, administrative, policing or judicial instruments in a discriminatory manner or of discriminatory nature; instituting or conducting criminal proceedings, or punishing in a manner which is of disproportionate or discriminatory nature; lack of the right to appeal to the court against disproportionate or discriminatory punishment; 26