The reform of the Schengen Borders Code does not produce significant effects only on internal borders. External borders too, in different ways depending on geopolitical contexts, will see the emergence of impactful effects on the condition of people moving towards the Schengen area. Although the reformed Code does not discipline or regulate the possible recourse to derogatory measures from the Common European Asylum System, the references to the discipline introduced on the instrumentalisation of migration contained in other EU instruments create a sort of line of continuity between the strengthening of surveillance measures at external borders and the issue, precisely, of the instrumentalisation of migrants. Emblematic in this sense is the experience already undergone by Poland in relation to the political crisis with Belarus.
Tomasz Pietrzak works at Stowarzyszenie Interwencji Prawnej, the Association for Legal Intervention based in Warsaw. The NGO has been involved in the “so-called” Polish-Belarusian humanitarian crisis since its inception in 2021, beginning with the case of RA v Poland, which concerned a group of 32 Afghan citizens who remained for over a week in territory presumably Polish or on the demarcation line between Poland and Belarus. The Association’s lawyers were involved in this case and have been working constantly in this area ever since.
Re-writing Borders – Unmapping the map
Tomasz Pietrzak’s presentation was part of the Re-writing Borders – Unmapping the map event organized by the Medea Project, held from 3 to 6 July 2025 in Trieste. With the objective of reflecting on European migration policies, their implications for the rights of foreign nationals and for the resilience of democracy, the event brought together practitioners, lawyers and activists supporting foreign nationals.
Part of the sessions addressed the internal borders of the European Union, which have become a space of free movement exclusive to European citizens or citizens with somatic features associated with “whiteness”. This has been documented since 2015 through reporting on and challenging the policies of Member States that have progressively restricted the mobility of foreign nationals by resorting in a wholly disproportionate manner to “exceptional” instruments, such as the reintroduction of border controls, or illegitimate practices, such as informal readmissions and pushbacks at borders more generally, through advocacy instruments, legal analysis and litigation actions.
Instrumentalisation and Suspension of the Right to Asylum: An Ambiguous Normative Framework
In February, the Polish Parliament voted for the suspension of the right to seek asylum in a particular area of the Polish-Belarusian border. The Act on Granting Protection to Foreigners was amended and the principle of instrumentalisation was incorporated into the legislation. This definition of instrumentalisation is important because, as we shall see later, it is broader than that contained in EU law.
Under national law currently in force in Poland, instrumentalisation implies a State or other entity enabling foreigners to cross the external border, particularly by using violence against State officials and soldiers, or by destroying border infrastructure. This conduct may result in the destabilisation of the internal situation. As can be seen, the definition is highly unclear, extremely vague, and is assessed arbitrarily by the politicians responsible for implementing this law when instrumentalisation occurs.
The procedure for suspending the right to asylum is a de facto state of emergency, which is unconstitutional. The right to seek asylum is one of the fundamental rights included in the first section of the Polish Constitution, and this section can only be suspended on the basis of legislation connected to a state of emergency. A state of instrumentalisation is not an official state of emergency.
Nevertheless, it was introduced for a temporary period of 60 days, at the request of the Ministry of Internal Affairs, by the Council of Ministers. After the expiry of this 60-day period, it can be extended for another 60 days, but only with the consent of the Sejm, the lower chamber of the Polish Parliament. Indeed, and this is what is happening right now, it can be extended for an indefinite period. Every 60 days, the minister submits a request to the Council of Ministers, and the Council of Ministers presents the act to Parliament, and in the current political situation, Parliament accepts it unanimously.
When can it be introduced? If instrumentalisation occurs, if there is a serious and real threat. Who assesses this? Nobody knows. And only if other measures are not sufficient to eliminate it. The question is: which other measures are insufficient to eliminate it? What other measures have been adopted to prevent the situation and prevent the use of the most severe method, which is the suspension of asylum in this area? It is totally unclear.
The Gap Between Formal Exceptions and Practical Reality
We know that within this 60-day period, during the suspension period, the border guard accepts neither applications for international protection nor declarations of intent to submit such an application. However, there are exceptions, and these exceptions are rather broad: unaccompanied minors, pregnant women, persons who may require special treatment due to their age or health.
I would like to draw your attention to points four and five. Point four refers to a person in respect of whom there are circumstances that, in the opinion of the border guard authority, may clearly indicate that they are at real risk of suffering serious harm in the country from which they arrived directly on Polish territory. This means that almost everyone could be treated in this exceptional manner. The question is: why is no one treated in this way?
Point five applies to Belarusian citizens who seek asylum irregularly, not on Polish territory but at border crossings or at the embassy, or by crossing borders irregularly and then seeking asylum. From our practical experience, we see that the law does not matter. It is politics. According to these exceptions, almost everyone who crosses the border and is apprehended directly after crossing could be treated in this exceptional manner. However, we see that people who have jumped over the fence at the border and have broken legs and arms are admitted to hospital and then pushed back to Belarus after hospitalisation. In effect, the exception does not work.
Militarisation of the Border: Prohibited Zones, Impunity and Physical Barriers
Militarisation of the Border: Prohibited Zones, Impunity and Physical Barriers
Poland has also introduced a temporary zone of prohibited entry, which is likewise unconstitutional. This is a part of the country where entry is forbidden. It is introduced in a manner similar to the suspension of asylum: the need to ensure security or public order, and if there is a justified risk of prohibited acts being committed, a temporary prohibition is introduced that can be extended indefinitely at the external border. This is something we have experienced from the beginning, since 2021. There was a brief period when the temporary zone of prohibited entry was not applied, but now it has been reapplied.
Another measure that was recently introduced after the change of government in 2023—we had a change of government but we did not anticipate that the change would bring more restrictive legislation than the previous government. Indeed, we have a decriminalisation of the use of weapons. As can be seen, a police officer, border guard or military police soldier does not commit an offence if they use weapons or other coercive measures such as handcuffs, batons, disabling holds, unlawfully, if this is used during the exercise of official functions, repelling a direct or unlawful attack on the life, health or freedom of the official, countering actions directed directly against them, or confronting a person who does not comply with a call to immediately abandon a weapon if circumstances require immediate action.
What do we have? We have a zone of prohibited entry where no one monitors the soldiers, border guard officials and police. They have freedom to use weapons and no one can control them except their own supervisors and perhaps the Polish Ombudsman who enters the zone from time to time. We have a radical securitisation of this area.
The final element is the border fence with barbed wire and electronic surveillance that has been constructed on Polish territory. As can be seen in the photograph on the left, it is positioned a few metres, sometimes even a few centimetres after the demarcation line of the border with Belarus. This small space between the Belarusian border marker and the fence is extremely important because people arrive there and we must convince the court and the European Court of Human Rights that this is Polish territory while we request, for example, Rule 39 interim measures. We also have the entire electronic surveillance system which makes the entire process of crossing the border much more dangerous.
What we are experiencing now is that the wall has not reduced the number of border crossings but many more people are being injured due to jumping from the fence. When I started working at the border in 2022, 2023, when the fence was not there or was not completed in every location, we helped people in the forest. Now we help people in very precarious health conditions who have jumped over the fence, mainly in hospitals because they are taken by the border guard to hospital after some time.
Chronological Evolution and European Legislative Contagion
How was such offensive legislation imposed in Poland? There has been a long road leading to this point. I want to show you that from 2021 to 2025 we have had various pieces of legislation.
At the beginning of the crisis in August 2021 there was an informal pushback regulation, a regulation of the Ministry of Internal Affairs stating that anyone who was apprehended in the immediate vicinity of the border crossing could be handed over to the border line without any formal inspection or formal verification of their identity. Shortly afterwards, a formal pushback regulation was introduced, an amendment to the Foreigners Act in October 2021, which establishes that every pushback must be documented. A decision is given to the foreigner before being pushed back to Belarus. The decision can be appealed, but the appeal has no suspensive effect, so one can appeal from Belarus. There is documentation on this and it is interesting to see what is in the files because the border guard, to justify the use of this formal pushback, collects newspaper articles, for example, or articles from the internet showing that there is a state of instrumentalisation and it was necessary to push someone back. At the same time, in October 2021, construction of the border barrier began.
In November 2021 the zone of prohibited entry was imposed. Then in 2022-2024 we saw a slight liberalisation. The zone of prohibited entry was cancelled in July 2022. But then after the change of government we see further legislation, even more severe. The zone of prohibited entry was reintroduced, the decriminalisation of the use of weapons was enacted, and finally the suspension of the right to seek asylum was introduced.
Meanwhile, in 2022-2024 we had the entire discussion at EU level on how to address the issue of instrumentalisation within the EU framework. In December 2021 we had the regulation addressing situations of instrumentalisation in the field of migration and asylum. It was mainly Poland and the Baltic States, Lithuania and Latvia, that were interested in this legislation and strongly supported it. It contained an unclear definition of instrumentalisation and some derogations from procedural safeguards, including an extended period for registering asylum applications of four weeks. This regulation was subsequently incorporated, in May 2024, into the force majeure regulation.
As you probably know, the regulation contains a definition of the principle of instrumentalisation, which is on the slide, and then contains various solidarity mechanisms and derogations. None of these, however, is a total suspension of accepting asylum applications at the border. No such measure exists. It can be postponed, it can be extended, the border procedure can be prevalent. There are various methods for using this state of instrumentalisation according to the regulation, but what we now have in national law is much more extensive.
Why? It is because, and this was explicitly stated by the Finnish minister, EU legislation does not yet provide us with effective instruments to address the problem. The same was repeated in Poland this year in the justification for the suspension. Every Polish act must contain a justification, an informal document explaining why the act was introduced. The justification states: a similar problem with instrumentalisation has been identified in Finland, which led to the adoption of the law on temporary measures to combat instrumentalised migration in regulations largely analogous to those contained in the draft. This means that Finland introduced a similar law and we did the same. Finland built a barrier, we built a barrier. However, Poland was first. Finland introduced severe laws, we can do the same, it is necessary. This justifies the adoption of more radical measures than those included in European regulations, because European regulations do not apply to our specific situation. We need much broader instruments.
In Lithuania this month, Minister of Internal Affairs Kondratowicz stated that, similarly to what Finland and Poland are applying today, Lithuania must consider suspending the acceptance of asylum applications. Why? Because attacks by migrants on Polish border guards are pushing Lithuania to consider it. Attacks on Polish officials lead another Member State to consider this type of legislation.
In the force majeure regulation, we have some instruments concerning instrumentalisation. These instruments will not be applied at external borders, at least at the external borders between Finland and Russia, Poland and Belarus, Lithuania, and presumably also Latvia soon, because they are considered too weak. National legislators want more, politicians want more.
Consequences: Discriminatory Narrative and Systemic Violence Against Migrants
What are the consequences? I will draw your attention to two of them. The instrumentalisation and introduction of these severe instruments, these violent methods, lead to a distinction between genuine and false asylum seekers. We have two examples here from 2022. Shortly after the outbreak of the Russian invasion of Ukraine, the Polish Minister of Internal Affairs said that there are genuine refugees and we are dealing with illegal economic migrants at the Polish-Belarusian border. The same was stated by the Polish President in April 2022. The difference between the two waves of foreigners: we have people arriving in Poland from Ukraine, they are poor or wealthy, but at the Polish-Belarusian border we are dealing with migrants who are fleeing to Belarus, could afford air tickets, information spread and so on.
This is the first problem. In public narrative it is commonly used that there are two types of refugees, asylum seekers: the good and the bad. The bad ones are those who violate the law. We have a very restrictive law, so if someone violates our restrictive law, they are a criminal. And a criminal is not a good asylum seeker. The good asylum seekers are those who do not violate the law. We decide who is not violating the law because we distinguish between these two borders, Polish-Ukrainian and Polish-Belarusian. It is very difficult to violate the law at the Polish-Ukrainian border if everyone was being allowed through in 2022-2023.
The second problem I would like to draw your attention to is that this legislation targets people and not the State. We know that Belarus is conducting the entire process. People, our clients say so. Everyone says so. It is true. The problem is that this legislation targets people on the move and not the State or quasi-state actors, smuggling networks, State security officials individually or institutionally, or the Belarusian State itself. In the case of Finland, the Russian State itself. It targets people. And the effect is death, pushbacks, enforced disappearances, barriers, violence.
I draw your attention to four reports that are quite recent and publicly available. Each of them addresses a different topic. All are very well documented. I recommend, if you wish to explore the topic in depth, using each of them and utilising them while conducting your litigation in cases of people from the Polish-Belarusian border because these are, first of all, in English, so it is possible to use them before the court. Secondly, all have been prepared with scientific methods such as statistics.
