Denial of entry is just the start of problems | In Principle

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Denial of entry is just the start of problems

Perpetrators of border offences aren’t all human traffickers or smugglers of goods. Increasingly they are citizens of third countries wishing to travel around the EU for study, work, or tourism. To facilitate obtaining a visa or an extension of their stay, they may use the services of intermediaries who don’t always operate lawfully. Visitors risk a lot this way. If the Border Guard finds that a passport or visa is falsified, the holder may not only be denied entry into an EU member state, but may also be convicted of a criminal offence and have their details entered in registers, hindering future travel in the Schengen zone. How can travellers defend themselves in this situation?

Border control—the start of problems

The Border Guard is responsible for security and order on the borders of Poland, and thus also of the EU. It is their task to inspect the validity and authenticity of travel documents. Using IT systems and other techniques, they check passports and visas as well as compliance with conditions for staying in EU territory (such as time limits).

If a traveller does not hold a valid travel document, the Border Guard is required to commence a criminal proceeding for unlawful crossing (or attempted crossing) of the border or for using a falsified document. The next step is to commence an administrative proceeding preventing the person from entering the country. To this end, the Border Guard may annul a person’s visa, hold the traveller in a temporary detention facility, and then issue a decision denying entry.

In their desire to place the traveller on the next plane or train, the Border Guard sometimes take hasty or chaotic action. They may assume, for example, that presenting a falsified passport demonstrates that the traveller poses a threat to public policy, internal security, public health, or the international relations of the European Union. Such findings—even if purely arbitrary—cause serious consequences for travellers who are entered as a “threat” in the Visa Information System (VIS), the list of persons whose stay in Poland is deemed undesirable (national register), or the Schengen Information System (SIS).

Entry in VIS

Use of a forged or altered visa or passport (e.g. with forged stamps) must result in commencement of a visa annulment proceeding. In this decision, the Border Guard officers must state the grounds. Often they adopt as the grounds for the visa annulment decision that the person poses a threat to internal security or public policy (Art. 12(2) of the VIS Regulation).

But the proceeding does not end with issuance of the decision, physical annulment of the visa, and entry of this information in the VIS with an indication of the grounds. In the future, it will be hard for the person to obtain a new visa, as the authority issuing the visa will check whether the applicant constitutes a threat. A further consequence may be the inability to take part in the ensuing criminal proceeding, because, lacking a valid visa, the defendant cannot appear in court in the country and testify in his own behalf.

The regulations do not indicate the route a traveller could pursue to amend an entry in the VIS. They merely list the authorities with direct access to the registers (i.e. bodies that can examine the registers and make entries and changes). The regulations also require these authorities to ensure that the entries of data are consistent with the law and the facts. Thus the only path for disputing an entry is to challenge the decision on annulment of the visa, first in an administrative proceeding and then before the administrative court.

Entry in national register and SIS

In terms of future travel, an entry in the national register maintained by the head of the Office for Foreigners is equally invasive.

Under the Foreigners Act, the head of the Office for Foreigners shall make an entry in the national register if the statutory grounds exist. These grounds vary, from a criminal conviction to opinions from state authorities finding that the individual is persona non grata in Poland due to “considerations of state defence or security, public safety or order, or the interests of the Republic of Poland” (Art. 435(1)(4) of the Foreigners Act). Unfortunately, the Border Guard often equate the very commencement of a criminal proceeding with the existence of a threat to security. They fail to consider that the criminal proceeding may end in discontinuance, conditional discontinuance, or acquittal. Consequently, a decision to refuse entry grounded on a finding that the person poses a threat to public policy or internal security may then serve as the basis for entering the person in the national register and at the same time in the SIS.

In turn, entry in the national register and SIS constitutes an independent ground for future denial of entry. When a traveller entered in these registers appears before a Border Guard officer, the officer will not examine the correctness of the entry, as the entry is presumed to be accurate and reliable.

Once entered, hard to correct

The head of the Office for Foreigners does not examine the accuracy of information presented to him concerning the circumstances in which an entry was made in the list. He relies on his confidence in the individual assessment made by another person, e.g. in this case the Border Guard officer who determined that the passport or visa was forged. The administrative courts regard such an individual assessment as a satisfactory and reliable element of the procedure for checking travellers (Supreme Administrative Court judgment of 27 July 2018, case no. II OSK 1930/17).

The problem is that the entry is a substantive technical act of which the traveller himself is not informed. There is no right to appeal from the entry, and thus the avenue for reviewing it is highly doubtful. If a person has information about the entry, he may apply for a certificate stating that his details do not appear in the national register, or may request correction or removal of his details. Then the head of the Office for Foreigners will issue a certificate complying with the application or an order refusing to issue a certificate with the requested content, which is appealable to the administrative court.

Another problem is that if the basis for the entry is an opinion finding that the traveller is a “dangerous person,” the head of the Office for Foreigners will not provide the traveller information on the factual basis for the entry (Art. 444(2) of the Foreigners Act). The traveller must then rely on the administrative courts to examine all of the classified evidence and fairly assess its reliability (Supreme Administrative Court judgment of 27 July 2018, case no. II OSK 1930/17). Consequently, the administrative proceedings and administrative court proceedings in these matters impose major restrictions on the traveller’s right to present his own case.

Another route: personal rights

A traveller who has been denied entry may also file suit for protection of his personal rights, including reputation as well as liberty (as the decision may result in the person being held in a temporary detention facility). Such a suit may include financial claims (for damages or compensation) and non-financial claims (e.g. to delete or correct the entry in the register). In such a proceeding, the traveller must show that his personal rights were violated, while the defendant (the head of the Office for Foreigners, or the Border Guard) must show that the violation was not unlawful. The issue of the unlawfulness of such entries has been the subject of court rulings, holding among other things that processing of personal data in these registers in and of itself carries pejorative connotations and threatens the individual’s right to be present in the territory of Poland (Warsaw Regional Court judgment of 9 January 2018, case no. I C 1227/16).

Such a suit, heard by the court in an adversarial proceeding, appears to be the most effective means. The court can fully examine the legality of the action of the head of the Office for Foreigners as well as the authorities who found that the traveller posed a threat to public policy or internal security.

Artur Pietryka, adwokat, Angelika Bednarz, Business Crime practice, Wardyński & Partners