Taking Back Control?

This week, the Polish government unveiled its new migration strategy, titled “Take Back Control. Ensure Security. Poland’s Comprehensive and Responsible Migration Strategy for 2025-2030” (Odzyskać kontrolę. Zapewnić bezpieczeństwo. Kompleksowa i odpowiedzialna strategia migracyjna Polski na lata 2025-2030). The plan, introduced with significant fanfare, lays out a proposal that, “in the event of a threat to destabilize the country by an influx of immigrants, it should be possible to temporarily and territorially suspend the right to accept asylum applications.” While yet to be formalized into law, the proposal has already drawn swift criticism from the European Union. An EU Commission spokesperson rebuked Poland’s unilateral approach, emphasizing the need for a collective solution, stating that all member states “need to work towards a European solution — one that holds strong against the hybrid attacks from Putin and Lukashenko, without compromising on our values.”

This blog argues that Poland’s proposal is not only unlawful but also poses a threat to the common European asylum system. This is so especially in light of the upcoming implementation of the New Pact on Migration and Asylum, a set of new rules managing migration and establishing a common asylum system at EU level.

Understanding the Context

Poland’s proposal comes on the back of a critical humanitarian crisis that has emerged since 2021 along the Belarusian border with Lithuania, Latvia, and Poland, amidst escalating political and diplomatic tensions between the European Union and Belarus. The Belarusian government, in retaliation against EU sanctions, began facilitating and encouraging migrant crossings into the EU,  or “instrumentalizing” migrants and asylum seekers in the words of the EU (for a critical assessment of such framing, see Aleksandra Ancite-Jepifánova).

Belarus allowed thousands of migrants—mostly from the Middle East and Africa—safe passage through its territory who were then pushed back by Lithuanian and Polish authorities, often with force. Those caught in this geopolitical tug-of-war, including vulnerable families with children, found themselves in dire conditions, lacking access to basic necessities, food, and medical care. Ganty, Ancite‑Jepifánova and Kochenov poignantly describe the Commission’s laissez-faire approach to members like Poland in this situation as “an important piece of the EU Lawlessness law puzzle” that migrants and asylum seekers face at the EU-Belarusian border.

The EU, while acknowledging the existence of a humanitarian crisis, also deemed Belarus’ “instrumentalization” of migration part of a “hybrid attack,” wherein the Belarusian regime was using migrants as a “weapon to destabilize the EU.” This framing, bolstered by the ongoing war in Ukraine, has only complicated the legal landscape. Migrants crossing from Belarus have been portrayed as a security threat, a narrative reinforced by Poland and other EU states bordering Belarus.

As a result, Poland, Latvia, and Lithuania declared states of emergency, fortified their borders, and in the case of Lithuania, adopted legislative amendments that effectively legalized pushbacks, in clear violation of international and EU asylum law. This initial step towards a unilateral approach to border management was heavily criticized by human rights organizations and later found illegal by the Court of Justice of the European Union (CJEU) in M.A. vs. Valstybės sienos apsaugos tarnyba (2022), which ruled that such laws contravened EU obligations to provide access to asylum procedures.

Nonetheless, this tough stance on migration has been widely popular within Poland (and beyond), where upcoming elections in May 2025 are driving a political climate that favors stricter border controls. The new proposal also fits into a broader European trend of unilateral border management, which runs counter to the spirit of the Common European Asylum System (CEAS). This trend is exemplified by Finland’s border closure with Russia since late 2023 and the passing of a law to abrogate asylum in case of “instrumentalization” of migrants (the law was passed in July 2024 but has not yet been applied), followed by similar measures considered by Latvia, Lithuania, and Estonia.

Incompatibility with Human Rights and Refugee Law

Despite their popularity, many of these restrictive policies are incompatible with the law. Poland’s recent policy idea is no exception. It stands in clear conflict with the country’s international and regional obligations.

One of the central legal principles in this context is the obligation of non-refoulement, which is enshrined in several international and regional instruments that bind Poland, including the 1951 Refugee Convention and its 1967 Protocol (Article 33), the European Convention on Human Rights (ECHR, Article 3), and the EU’s Fundamental Rights Charter (Article 19 (2). Under customary international law, this principle is non-derogable, even in times of emergency or when national security concerns are invoked. The non-refoulement principle prohibits states from returning individuals to a country where they would face persecution, torture, or inhuman or degrading treatment. This core obligation applies even in situations of “instrumentalization” of migration, as recently reaffirmed by the United Nations High Commissioner for Refugees. Likewise, in M.K. and Others v. Poland, the European Court of Human Rights (ECtHR) emphasized that states must provide an individual assessment of each claim and ensure that individuals have access to an effective remedy with automatic suspensive effect before expulsion. By denying asylum seekers access to any asylum procedure or individual assessment, Poland’s actions breach its obligation to rigorously assess the risk that expelling an individual would expose them to severe harm.

In particular, the ECtHR has clarified that the principle of non-refoulement applies even to individuals waiting at a border, as long as their life or well-being would be at risk upon return. The UNHCR supports this extraterritorial application of the principle, meaning that even if individuals are not physically within a state’s territory, they are still protected under international law if they are effectively under that state’s jurisdiction or control.

Poland’s actions also violate the prohibition of collective expulsion, enshrined in Article 4 of Protocol No. 4 of the ECHR and in Article 19 (1) of the EU Charter of Fundamental Rights. The ECtHR has held that this prohibition prevents states from removing groups of individuals without examining their personal circumstances. The Hirsi Jamaa and Others v. Italy judgment and more recent cases such as N.D. and N.T. v. Spain have reinforced that blanket pushbacks or border closures, without allowing individuals to seek asylum, violate international law.

The Framework for Exceptions and Derogations

Even though the 1951 Refugee Convention and human rights treaties allow for exceptions and derogations, Poland cannot rely on either in the case at hand.

First, while Article 33 (2) of the Refugee Convention permits exceptions to non-refoulement in cases where an individual poses a threat to national security or public order, this exception is highly limited and requires a thorough, individualized assessment with procedural safeguards. Blanket pushbacks or the denial of entry at the border without such assessments violate these procedural safeguards. Furthermore, Article 33 (2) does not allow states to deny access to their territory or asylum procedures wholesale, which Poland’s suggested policy seems to do.

Second, Poland has not declared a state of emergency to justify its derogations, and even if it did, the UNHCR has emphasized that such derogations would still need to comply with international human rights law. Under Article 52 of the EU Charter of Fundamental Rights, for example, any limitation on rights must be proportional and respect the essence of those rights. The threshold for derogating is very high and requires a real, imminent threat to the country, which would need to be met in the current migration context along Poland’s Belarusian border. Even if this requirement were fulfilled, the current proposal would not respect the essence of Article 18 (the right to asylum) as well as the non-refoulement principle and the prohibition of collective expulsion in Article 19 of the Charter.

The Risks of a Unilateral Approach

Besides being a violation of international and regional obligations, Poland’s and other member states’ unilateral migration control poses serious risks to the cohesion and effectiveness of joint approaches in migration and asylum, particularly as the New Pact on Migration and Asylum approaches implementation.

Such unilateral actions may disrupt uniform asylum rules, diverting asylum seekers to neighboring states and fragmenting the EU’s response. Existing instruments such as  Article 78(3) of the Treaty on the Functioning of the EU, which provides for the adoption of provisional measures in the event of a “sudden increase of arrivals of third-country nationals,” lose their potency when unilateral acts become a popular approach. Poland’s restrictive measures increase pressure on other member states, leading to even more uneven protection standards and eroding the solidarity principle that underpins the CEAS. This fragmentation weakens the EU’s ability to manage migration effectively.

Poland’s approach could also undermine the New Pact’s Crisis and Force Majeure Regulation before it has even entered into effect. The controversial Regulation creates mechanisms for member states to share responsibility during crises in the form of financial contributions, relocations, or temporary derogations from asylum procedures— the latter has been strongly criticized by human rights advocates. Poland’s actions, however, risk pushing EU protection standards even lower compared to the ones proposed by the Pact. Even though the Crisis Regulation, intended for exceptional circumstances, may be criticized for its vague language regarding how fundamental rights will be safeguarded, it nevertheless foresees monitoring mechanisms (Article 6), reporting duties (Article 17 (4)) to contingency planning (Article 16). Unilateral acts like the one suggested in Poland’s recent proposal undermine even these insufficient standards.

A Dangerous Precedent

Additionally, unilateral measures could set a dangerous precedent, encouraging other member states to bypass EU rules, fragment asylum policies, and create legal uncertainty. This undermines efforts to build a coherent system for migration management, leaving asylum seekers vulnerable to inconsistent and often hostile national policies and create a “race-to-the-bottom” when it comes to protection standards.

In conclusion, Poland’s new migration strategy presents significant risks not only to migrants’ rights but also to the integrity of the CEAS. By promoting unilateral actions, such as the suspension of asylum applications, Poland both undermines core EU principles of solidarity and consistent asylum standards across member states. As the EU prepares to implement the New Pact on Migration and Asylum, it is crucial that member states collaborate to uphold shared responsibilities and ensure that national security concerns do not displace fundamental rights and legal obligations.