Taking Back Control?
The Perils of Poland’s New Migration Strategy
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.
Experts should move beyond media reports. If the author had done so, she would have realised that Poland is NOT suggesting to proceed unilaterally. Rather, the strategy promises: ‘Poland … will seek to change the general approach at the level of the European Union and within the framework of membership in international organizations, in favor of complementing it with security issues’ (translation by DeepL). In addition, the government wants to streamline the domestic asylum procedure, withouth abolishing it, which might very well violate EU/int. law but that is not the same as blanket ‘pushbacks’ .
Also, changing EU law and international treaties might very well violate human rights law. It is stunning, however, that the author refers to the N.D. & N.T. judgment to justify this conclusion. After all, it had concluded that Spanish pushbacks (‘hot returns’) were compatible with human rights. This judgment raises many legal question but that is something else than the clear conclusion by the author. No-one knows how the ECtHR will rule on the ongoing instrumentatlisation cases pending before the Grand Chamber which will be asked to determine whether the rationale can be extended to scenarios of instrumentatlisation and/or Article 3 ECHR (in addition to the prohibition of refoulement).
Finally, the Commission’s view is not correctly represented in the post. At least, the President seems to give in to a certain extent: https://www.politico.eu/article/poland-prime-minister-donald-tusk-eu-asylum-ban-russia-belarus-migration-security/
Dear Daniel Thym,
Thank you for your comment and thoughts on the analysis. I appreciate that you are starting a conversation on this important topic.
I would like to respond to some of your statements.
Firstly, on your point of whether the policy suggests a unilateral approach. As I mentioned, what has been presented so far is a strategy. I cite and link this strategy in the post.
Like you, I relied on deepl.com to translate the Polish text into English.
There it states:
-“Poland cannot allow organized groups of illegal immigrants, controlled by Russia and Belarus, to cross our eastern border under the pretext of submitting asylum applications.”
-“The priority concerning migration will be national security.”
-“In case of a threat to state stability from an immigrant influx, the right to accept asylum applications should be subject to temporary and territorial suspension (emphasis added), with laws ensuring parliamentary oversight and consideration of vulnerable groups and experiences from other countries.
-“Migration must be closely regulated and remain under control, particularly concerning the purpose of entry, the scale of the influx, and the countries of origin of foreigners.”
Based on that, my understanding of the proposal is that Poland suggests in the long run seeking “to change the general approach at the level of the European Union and within the framework of membership in international organizations, in favor of complementing it with security issues” as you write. Still, at the same time, it also wants to implement a domestic law that would allow for unilateral decisions now on when to stop accepting asylum applications temporarily at its border.
Secondly, on your point on N.D. and N.T. v. Spain, I beg to differ. The Grand Chamber did not per se state that pushbacks by Spain are compatible with human rights. In N.D. and N.T. v. Spain, the Court set out a two-tier test to determine compliance with Article 4 Protocol 4 ECHR in cases where individuals cross a land border in an unauthorised manner and are expelled summarily, a test which has been applied in all later cases that deal with border situations (including the most recent case that has been decided this week against Cyprus).
The Grand Chamber held in this 2020 decision that it has to be taken account of whether the State provided genuine and effective access to means of legal entry, in particular border procedures to allow all persons who face persecution to submit an application for protection, based in particular on Article 3, under conditions which ensure that the application is processed in a manner consistent with international norms including the Convention. Secondly, where the State provided such access but an applicant did not use it, it has to be considered whether there were cogent reasons not to do so based on objective facts for which the State was responsible. The absence of such cogent reasons preventing the use of these procedures could lead to this being regarded as the consequence of the applicants’ own conduct, justifying the lack of individual identification. Based on this test established in N.D. and N.T., if Poland or any other state does not provide such a genuine and effective possibility to seek protection, then this constitutes a violation of Article 4 Protocol 4.
And lastly, thank you for sharing the POLITICO article to complement the picture of the reactions by the EU. The article was published after I wrote my post, so this is helpful indeed. However, in this very article, von der Leyen is quoted as saying “You have to be very clear that you have a state actor [that] is having a hybrid attack against the country,” when asked how the Commission might design rules on suspending asylum rights. To me, this is a rather vague and political statement in an attempt to appease the situation and not an endorsement of the proposed concept.
I fully agree with you that no one knows how the ECtHR will rule on the ongoing instrumentalisation cases pending before the Grand Chamber (C.O.C.G. and Others v. Lithuania and R.A. and Others v. Poland) will rule. I guess in the Spring of 2025 we will know more and then we may retake this conversation.
Hello,
I’m Polish, and I live in Poland. I’d like to say that what the government does is something totally opposite to what common people do. I lived in Spain for half a year so I speak communicative Spanish. There are a lot of Spanish-speaking foreigners in my hometown (100k inhabitants) now. They are from Mexico, Columbia, Venezuela, and other parts of South America. Barely no one can communicate with them in my city, so I’m joining a local program to help these families either in their workplaces, at the doctor’s, or at school (as they also have children here). We did the same when Ukrainians came to Poland in 2022. Then, the help was even more massive. We took them to our houses and really took care of them for months till they got up on their feet. Now, it’s different, but we still help. But we don’t have much influence on what the government does.