Migration and Regularisation in Poland by Alan Desmond

CCJHR blog is pleased to be able to cross post this blog by Alan Desmond with Human Rights in Ireland.  Alan is writing a PhD here at UCC, under the supervision of Professor Siobhán Mullally, on the regularisation of undocumented migrants in international and European Human Rights Law. Alan is a Government of Ireland Research Scholar in the Humanities and Social Sciences.

The immigration to Poland from the east which followed the collapse of communism in 1989 and the fall of the Soviet Union in 1991, coupled with EU accession negotiations in the 1990s, forced Poland to try to put in place a framework to deal with immigration. One of the methods employed in the field of irregular immigration was to implement regularisation or legalisation programmes, a process whereby unlawfully present non-EU citizens can apply for a legal status.

 Despite the dim view of regularisation taken by the Council of the European Union and the European Commission which emphasise instead enhancing border control and returning irregular immigrants to their countries of origin or transit, most EU Member States have implemented regularisation measures of one sort or another. Poland’s third regularisation programme, underway since 1 January, looks set to succeed where the country’s first two attempts at regularisation failed.

The 2003 and 2007 Regularisations

Poland’s first attempt at regularisation was carried out in 2003 in anticipation of its accession to the EU in May 2004, with the second regularisation programme coming in 2007 ahead of Polish membership of the Schengen zone.

Both attempts were abjectly ineffective. This was due to overly-restrictive eligibility criteria, failure to publicise the programmes amongst the target group and the understandable reluctance of immigrants without a legal status to present themselves to the authorities.

In order to successfully apply for regularisation in 2003 the Polish authorities had to be satisfied that applicants did not pose a threat to national security or public order, with irregular immigrants having to submit proof of, amongst other things, almost 7 years’ continuous residence in Poland; medical coverage and sufficient resources to support themselves without recourse to social welfare; a promise of work; and legal title to residential accommodation. The 2007 regularisation programme was even more restrictive.

While the 2003 programme facilitated regularisation of about 2000 immigrants, the 2007 programme yielded less than 1000 successful applications.

Those who acquired a legal status under both programmes were given a one-year residence permit and were drawn primarily from the most well-organised immigrant groups in Poland, namely the Armenian and Vietnamese communities. While Ukrainians constitute the largest irregular immigrant community in Poland, they ranked third in terms of successful applications.

Given that Poland’s irregular population is estimated by the government to be between 40, 000 and 100, 000, with NGOs putting the figure at 100, 000 – 500, 000, Poland’s first two attempts at regularisation were wholly unsuccessful.

The 2012 Regularisation

It is perhaps unsurprising, then, that a third regularisation programme was deemed necessary. Providing a legal status to immigrants allows them to emerge from the shadows of illegality where exploitation is rife. Freed from the fear of deportation which blights the lives of irregular immigrants the world over, regularisation empowers them to demand respect for their rights. Indeed States will sometimes be required to provide a legal status to irregular immigrants so as to comply with their human rights obligations. The right to respect for private and family life recognised in Article 8 of the European Convention on Human Rights is one example of a human right which has been found to oblige a State to regularise the status of an irregular immigrant.

While agitation by civil society and immigrants themselves played an important part in the introduction of a third regularisation programme in Poland, politicians seem to have proposed the relevant legislation not so much out of an awareness of human rights obligations as out of a realisation that the country’s dynamic economy, coupled with large-scale emigration of Polish citizens, has produced a demand for labour.

Thus from 1 January until 2 July an application for regularisation may be lodged by unlawfully present immigrants who have been continuously resident in Poland since 20 December 2007 and by asylum-seekers whose application for refugee status was refused prior to 1 January 2010.

Successful applicants will be granted a two-year residence permit which will also entitle them to work without a work permit, though the legislation provides that these two years may not be counted as part of the period of continuous legal residence which is required before an immigrant can apply for EU long-term residence status.

In contrast to the stringent requirements of the first two regularisation programmes, the current programme precludes regularisation only where applicants are found to be a threat to national security or public order; to have submitted false documents or information as part of their applications; to have been entered into the Schengen Information System by another Schengen country for the purposes of refusing entry.

The current regularisation programme is thus far more applicant-friendly than the earlier ones and its less restrictive eligibility criteria mean that it is open to a far wider pool of Poland’s irregular immigrant population than was the case in 2003 and 2007.

Little surprise, then, that the first eight weeks of the programme have seen 3377 applications submitted to the regional authorities in each of Poland’s 16 administrative regions, more than half of the combined total of applications submitted during the 2003 and 2007 botched attempts at regularisation. A negative decision at the regional level may be appealed to the Office for Foreigners.

The scale of the response no doubt reflects the government information campaign and media coverage, but with just 303 positive decisions issued so far it remains to be seen whether increased awareness and more favourable eligibility criteria will in fact translate into an appreciably larger number of regularised immigrants than Poland’s previous efforts to provide legal status for unlawfully present non-EU citizens.

Furthermore, despite the comparative generosity of the current regularisation programme, it fails to deal with irregular immigrants who arrived in Poland after the magic date of 20 December 2007. Are they to await the country’s fourth regularisation programme four years from now? Would the implementation of such a regularisation programme be contingent on propitious economic circumstances? To avoid uncertainty and unfairness it might be wise to follow the advice of people such as Joseph Carens who has argued that rather than having recourse to one-off amnesties, liberal democratic States should institutionalise an automatic transition to legal status for irregular immigrants who have been settled for a specified minimum length of time. Just how much time should have to pass before an irregular immigrant gains legal status is of course fertile ground for disagreement and, as Carens admits, a question whose answer inevitably involves an element of arbitrariness.

Detailed, regularly updated information on Poland’s third regularisation programme is provided in a number of languages at http://abolicja.gov.pl