COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES THE IMPACT OF PANDEMIC ON THE RISK OF DETENTION FOR STATELESS PERSONS IN POLAND Statelessness in Poland remains a problem that is largely overlooked, mostly due to the underreported number of stateless persons, their mixed origin and dispersion across the country. As statelessness is not typically linked with a specific minority group or a single ethnicity, identification of stateless persons is a challenging process, with the lack of dedicated and legally prescribed procedures making it even more difficult. Statelessness or risk thereof in the Polish context may often coincide with irregular stay. Procedural difficulties in establishing the citizenship of the person (or their identity) lacking adequate documentation may be used as justification for placing them in detention. The same rules may be applied in relation to stateless asylum seekers. There is, therefore, a clear link indicating a heightened risk of detention for stateless persons on Poland. The COVID-19 pandemic, on the other hand, has had an impact on the migration processes in general, and on the application of detention, their specific needs and situation in particular. With no statelessness determination procedure in place and no legally prescribed definition of a stateless person in national law, there may be a significant number of stateless persons or persons at risk of statelessness in Poland who remain a hidden number, not included in any official reports or statistics. Experience of the Halina Niec Legal Aid Center and other NGOs providing legal assistance to persons seeking protection and foreigners indeed shows that statelessness often coincides with irregular status. Such persons are thus reluctant to contact the authorities out of fear of being placed in detention. According to a study by European Network on Statelessness, the risk of detention is an important factor deterring stateless persons from approaching the authorities,1 a situation that is neither beneficial for the state nor for the persons concerned. The most recent available data on stateless persons in Poland gathered through the Population Census is already outdated, as the census was carried out back in 2011. Nevertheless, it provides an interesting reference point in terms of the scale of statelessness in Poland. The census report recorded a considerably high number of over 8,000 persons of “unknown nationality” and 2,020 stateless persons. These numbers are to be treated with caution, however, as the information was gathered from declarations made by the census respondents, without any formal verification of their legal status. A mapping study on statelessness in the country, providing a more detailed overview of the statelessness population has been completed and the final report issued in September 2019 (UNHCR)2. As of July 2020, statistics published by the Office for Foreigners put the total number of “stateless persons” and individuals of “unknown nationality” holding a valid residence permit at 382, of which 345 people were registered as stateless and 37 individuals were of ‘unknown nationality’. No information about the origin of these individuals is available3. There is no published and publicly available data on stateless people in detention, though some figures are collected by the Polish Border Guard. UNHCR estimates for the stateless population in Poland are based on data from the 2011 census. Polish law has no specific regulations dedicated to stateless persons and so, those whose nationality was deemed “uncertain”, who may have been at risk of statelessness or who are stateless, were undergoing the standard identification process as part of other administrative procedures they were qualified under (protection or return). According to Polish regulations, foreigners identified as “unreturnable” are eligible to receive the so-called “tolerated status” which guarantees them the release from detention and entitles them to stay in Poland. If unreturnability is caused by risk of grave human rights violations upon removal, they can be granted “humanitarian stay” instead. During the lockdown months, the Halina Niec Legal Aid Center has not recorded any decisions, however, where such permits would be issued based on the COVID-19 – related impossibility of removal. In response to the global epidemic of COVID-19, Polish authorities have imposed far-reaching restrictions and security measures which bear a direct impact on the situation of foreigners, including stateless persons and persons at risk of statelessness. On 13 March 2020, Polish Prime Minister announced the introduction of the state of epidemic emergency. On the same date three regulations were adopted, followed by a decision to announce the state of epidemic resulting in the closing of borders to foreigners.4 International passenger air flights and international rail travel were suspended. However, the ban on entering Poland was not absolute. In particularly justified cases5, the commanding officer of a Border Guard outpost, upon authorisation of the Commander-in-Chief of the Polish Border Guard, can allow a foreigner to enter the territory of the Republic of Poland according to the procedure set out in the Act of 12 December 2013 on Foreigners (Journal of Laws of 2020, item 35). This last exclusion from the entry ban remained the only opportunity for foreigners trying to enter the territory of Poland in order to seek international protection. In practice however, the overall number of new asylum applications lodged in Poland has dropped significantly6, while the number of applications made at Polish external borders (especially the most frequently used Terespol border crossing on the border with Belarus) has dropped down to zero in the first months of the lockdown. The newly introduced legal instruments, prompted by health security reasons, held no direct reference to foreigners with irregular status or stateless persons. The practice of courts related to the detention of foreigners and return procedures continued unchanged. As for the carrying out of deportations, the practice varied, depending on the country of removal. According to NGO and media reports, some 1 2 3 4 European Network on Statelessness (ENS), Protecting Stateless Persons from Arbitrary Detention in Poland. UN High Commissioner for Refugees (UNHCR), Mapping Statelessness in Poland, September 2019, https://www.refworld.org/docid/5da58e7e4.html Up-to-date statictical information is published on the Statelessness Index website run by the European Network on Statelessness (ENS): index.statelessness.eu Regulation of the Minister of Health dated 13 March 2020, concerning the introduction of the state of epidemic emergency on the territory of the Republic of Poland; Regulation of the Minister of Internal Affairs and Administration dated 13 March 2020, concerning the temporary reintroduction of border control of persons crossing state border, being an internal border; Regulation of the Minister of Internal Affairs and Administration dated 13 March 2020, concerning the temporary suspension or limitation of border movements in selected border crossing 5 The ban was not applied to citizens of the Republic of Poland, foreigners who are spouses or children of citizens of the Republic of Poland or remain under permanent care of citizens of the Republic of Poland, holders of the Pole’s Card, diplomats, persons who have the right of permanent or temporary residence in the Republic of Poland or a work permit, foreigners driving a vehicle intended for transporting goods 6 The number of asylum applications lodged in 2020: January – 372, February – 361, March – 166, April – 62, May – 133, June – 210. In comparison to the average 360 applications per month at the beginning of the year, the numbers have gone down by over 50% in March and by 83% in April. 40 International Detention Coalition and Western Sydney University