Legal, constitutional, EU law and human rights compliance audit of parliamentary draft legislation RPW/29075/2026 concerning the mechanism for temporarily restricting the right to lodge an application for international protection at designated sections of the State border.
The analysis examines the proposed amendments to Article 33a of the Polish Act on Granting Protection to Foreigners within the Territory of the Republic of Poland and, insofar as necessary to assess the regulatory effects of the draft, the operation of Article 33b.
The audit addresses, in particular, the compatibility of the proposed framework with the Constitution of the Republic of Poland, directly applicable European Union law, the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the 1951 Refugee Convention. It also assesses the explanatory memorandum, the model of parliamentary oversight, legislative technique and the available empirical material concerning the operation of the mechanism.
The audit reaches two principal findings.
First, the draft responds to a genuine operational issue arising from the need to repeatedly renew the temporary restriction. However, the legislative materials do not demonstrate why achieving that objective requires both the removal of a statutorily defined maximum period for each subsequent extension and the elimination of the requirement for repeated consent by the Sejm.
The proposal therefore changes not merely the duration of extensions, but also the institutional model of periodic scrutiny over the continued application of the measure.
Second, the draft was introduced after the principal instruments of the new EU legal framework governing international protection procedures, screening and crisis or instrumentalisation situations had already become applicable. The accompanying materials do not contain a sufficiently developed assessment of the relationship between Articles 33a–33b and Regulations (EU) 2024/1348, 2024/1356 and 2024/1359.
The audit does not conclude that the draft is automatically unconstitutional, nor does it find Article 33b incompatible with EU law in every possible application.
It nevertheless identifies specific scenarios which, if they occur in practice, would be incompatible with directly applicable EU law. In particular, such a conflict would arise if the national mechanism of “not accepting” an application were interpreted or applied so as to negate the legal effect of making an application for international protection, to bypass the required procedural pathway following screening, or to deprive the person concerned of effective access to the appropriate international protection procedure.
From a constitutional perspective, the audit identifies serious, but not determinative, concerns regarding proportionality, foreseeability and the cumulative expansion of executive discretion over the duration of the measure while the existing model of periodic parliamentary authorisation is removed.
The audit recommends that draft RPW/29075/2026 should not be enacted in its present form without prior revision of Article 33a and a renewed assessment of the effects of Article 33b in light of applicable EU law and human rights standards.
Translation of the original Polish version. The original Polish version is authoritative.