Abuse of the ‘threat to national security’ clause in foreign nationals’ proceedings – courts rule that state authorities may act hastily

10 September 2024 | Author: Editorial office

Foreign nationals residing in Poland are seeking help from the Migration Department of the Helsinki Foundation for Human Rights after being classified by administrative authorities as threats to national security. As a result, they lose the right to remain in Poland, are denied international protection or deprived of their freedom.

At the same time, individuals classified as security threats are not informed of the reasons behind such far-reaching conclusions being drawn against them. As a result, they are unable to defend themselves effectively in the proceedings. Without knowing the fundamental reasons on which the decisions are based, they cannot present appropriate counterarguments. Neither the parties to the proceedings nor their legal representatives are granted access to the classified documents referred to by the administrative authorities and courts.

Below, we present the stories of several individuals who received legal support from the Helsinki Foundation in connection with being deemed threats to the Polish state. A similar case was recently covered in a report by Paweł Reszka for the Polityka magazine.

(…)

Unjustified SIS alert: The case of Lyudmyla Kozlovska – a social activist unjustifiably deemed a threat to Poland’s national security

Recognising a foreigner as a threat to national security may result in their data being entered into the Polish register of persons whose presence on Polish territory is undesirable as well as into the Schengen Information System (SIS) for the purpose of issuing a refusal of entry.

This is what happened in the case of Lyudmyla Kozlovska, which resulted in her deportation to Ukraine. For many years, the human rights activist from Ukraine was banned from entering Poland for security reasons and restricted in her ability to run her foundation. As it turned out, the Head of the Office for Foreigners, who included her on the list, did not verify the information sent by the National Security Agency and neglected to independently assess whether the entry on the list was justified. As a consequence of the Polish listing and SIS II, there were also problems for Lyudmyla Kozlovska in other Schengen countries.

Over the years, the case has gone to court three times. In 2019, the Voivodeship Administrative Court in Warsaw (WSA) ruled for the first time that the classified information underlying the listing was insufficient and too vague. Again, in 2021, the WSA in Warsaw overruled the decisions of the Head of the Office for Foreigners and ordered the authority to assess the entire circumstances of the case. The judgment was subsequently upheld by the Supreme Administrative Court.

In the latest judgment, issued on 28 November 2023 (ref. no. IV SA/Wa 2067/23), the WSA in Warsaw not only overruled the appealed decision of the Head of the Office for Foreigners, but also obliged him to issue a certificate that the foreigner’s data are not on the list of foreigners whose residence on the territory of the Republic of Poland is undesirable.

As in previous rulings, the WSA noted that ‘the authority limited itself only to asking the Head of the ABW to send new evidence and it was the Head of the ABW who was ordered to refer to the Court’s guidelines, forgetting that it is the authority itself that is obliged to comprehensively consider the evidence in the case.’

Source: hfhr.pl

Read also: