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Marcin Princ*
foreigners, migrants, human rights, pandemics, rights and freedoms
The content of the article is devoted to the situation of foreigners – migrants
– entering and staying in the territory of Poland. All considerations refer to the
conditions of the pandemic. The author asks whether the introduced legal solutions
are consistent with the rights and freedoms, and whether the restrictions are
constitutional and, in particular, proportional to the threat. The subject of the
analysis focuses mainly on Polish sources of law issued during the rst wave of the
epidemic in Poland. Many voices currently indicate that the pandemic situation in
the global world could repeat itself in the future. Hence, the present experience
should be used as a reference point in the future.
The 20th century, in particular its second half, was referred to as the age of
migration. Everyone has got used to this condition – common and frequent
movement for work, family visits, sightseeing, seeking protection, willingness to
change in life. Poland has also evolved into a place of migrant destination, mainly
employee migration. The subject of the analysis is the rights of migrants,
especially foreigners, considered in the light of the current state of the pandemic
associated with the occurrence of the SARS CoV-2 virus. As a result of the spread
Wroclaw Review
of Law, Administration & Economics
Vol 10:1, 2020
DOI: 10.2478/wrlae-2020-0007
* Adam Mickiewicz University in Poznań, Faculty Law and Administration, https://orcid.
org/0000-0002-3727-7455
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of the virus, legal solutions aecting the legal position of individuals were
adopted. All over the world, the many restrictions and injunctions include: ban on
leaving the house, movement restrictions, restrictions on crossing borders, bans
on doing business, restrictions on the practice of certain aspects of religion,
suspension of air connections, curfew, assembly bans, order to cover the mouth
and nose in public space, the obligation to quarantine, no entry to cemeteries or
forests and the obligations to install and use tracking applications.
Owing to the fact that we currently live in a global society, problems from
other countries are relevant to countries from another continent. The importance
of the problem is symbolized by the judgements of the highest courts, which
repealed the introduced restrictions. Such an example is the intervention of the
Supreme Court of India in relation to the respect for the rights of internal
migrants1. This case conrms that the rights of migrants in an era of a pandemic
may be disproportionately violated.
The epidemic situation showed that the state has instruments that can
signicantly aect people’s lives. Among many rights and freedoms, such as
freedom of movement and freedom of assembly, or freedom to manifest one’s
religion in public by worshipping, praying, participating in rituals, practicing and
teaching were limited. In addition, the possibility of crossing borders was limited.
Above all, the restriction of freedom of movement and the possibility of crossing
borders also had a great impact into the status of individuals. The current situation
has taken a toll on all migrants, in particular, foreigners. For the purposes of this
article, it is assumed that a migrant is any person who changes their place of stay,
either temporarily or permanently, regardless of the legal status of the stay.
However, the scope of considerations applies only to foreigners within the
meaning of the Act on foreigners from 20132. Therefore, it applies to people who
do not have Polish citizenship (citizens of other countries, stateless persons and
people with unrecognized citizenship). The legal situation of internal migrants
and Polish citizens remains beyond the scope of interest in this article.
Migration is a process that is inherent in human nature; only its scale has
changed throughout history. This ‘phenomenon must be attentively analyzed in a
1 ‘India must follow Supreme Court Orders to Protect 100 Million Migrant Workers: UN
Rights Experts’ (4 June 2020) <https://news.un.org/en/story/2020/06/1065662> accessed 21
August 2020; Chitranjali Negi, ‘Human Rights Violations of Migrants Workers in India
During COVID-19 Pandemic’ (17 June 2020). Available at SSRN: https://ssrn.com/
abstract=3629773 or http://dx.doi.org/10.2139/ssrn.3629773; https://www.ihrb.org/focus-
areas/migrant-workers/video-covid19-internal-migrants-India, accessed 26 August 2020;
Geeta Pandey,‘Coronavirus in India: Desperate Migrant Workers Trapped in Lockdown’ 22
April 2020 <https://www.bbc.com/news/world-asia-india-52360757> accessed 20 June
2020.
2 Consolidated Text, ‘Journal of Laws of 2020’ item 35, as amended.
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
complex civilization context’3. The relationship between globalization and
migration is extremely strong4. Primarily, the literature distinguishes between
internal and external migration. The statistical data presented by the Border
Guard and Central Statistical Oce show how the border trac in Poland has
been growing from year to year. In 2019, the border trac grew again by 3.2%
compared to 20185. Of course, the greatest increase in passenger trac across the
border took place after 19896.
Migration processes have been halted on an unprecedented scale in most
recent history. For the sake of health and life protection, solutions have been
adopted, which have worsened the legal position of foreigners. The proposed
article is aimed at assessing the solutions adopted and aspires to answer the
question whether the new restrictions are proportionate, necessary and whether
they comply with the Constitution and legal acts classied as sources of human
rights. The major task of the article is to investigate the relationship between
fundamental rights and freedoms and legal provisions that have been introduced
in Poland. Hence, the main thesis of this article is that legal regulations adopted
in the rst wave of the spread of the virus disproportionately limited the rights
and freedoms of migrants, mainly freedom of movement. The author of the study
primarily uses the formal dogmatic method, consisting in recalling and analysing
of Polish law to present specic conclusions in the nal phase.
A migrant is a person who changes their place of residence, temporarily or
permanently, under duress or without pressure. The migration process may extend
beyond the territory of the country or concern internal movements. Taking into
account the rights of migrants, it is highly recommended to focus on the situation
of people who, according to national law, are its citizens or do not have the
citizenship of a given country (foreigners).
Primarily, it should be noted that the rights of migrants are related to human
rights. According to international human rights norms, which are based on the
3 Vasile Bogdan, ‘Human Rights and Migration‘ (2017) 2 Cross-Border Journal for International
Studies 3, 44.
4 Piotr Koryś and Marek Okólski, ‘Czas globalnych migracji. Mobilność międzynarodowa w
perspektywie globalizacji’ (2004) Prace Migracyjne 55, 9.
5 <https://stat.gov.pl/obszary-tematyczne/ceny-handel/handel/ruch-graniczny-oraz-wydatki-
cudzoziemcow-w-polsce-i-polakow-za-granica-w-iv-kwartale-2019-roku,13,26.html>
accessed 10 August 2020.
6 Jan Białocerkiewicz, ‘Nowe polskie prawo o cudzoziemcach‘ (2003 TNOiK „Dom
Organizatora“) 202.
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inherent dignity of every person, migrants enjoy the fundamental rights aorded
to all persons regardless of their legal status in a state. Human rights are universal,
which means that they belong to everyone, not only to citizens7. The concept of
human rights goes beyond national interests8. At the same time, it is noted that
‘[m]igrants are often perceived as “less deserving” than citizens, as if only
citizens should have access to the full enjoyment of human rights’9. There is no
doubt that migrants have basic rights, which cannot be violated10. The diculty
is in dening content of fundamental rights.
However, between all human rights, several of them are closely linked to
migrants11. There is no doubt that human rights were also created for migrants
and refugees12. This is evident, especially in light of the content of the Universal
Declaration of Human Rights – ‘Everyone is entitled to all the rights and freedoms
set forth in this Declaration…’13. Using words such as ‘everyone’s right’, ‘no one’
or ‘everyone has’ signies that every human right refers to any migrant. Some of
the rights are typically linked to migrants such as the right to freedom of movement
and residence within the borders of each state (art. 13 para. 1) or right to asylum
from persecution (art. 14). Additionally, there are number of human rights – right
to life, equality and freedom from discrimination in the enjoyment of human
rights for all people, including migrants, protection against arbitrary arrest and
detention, protection against torture or inhuman treatment, prohibition against
collective expulsion, procedural safeguards in individual expulsion proceedings,
family rights, protection against labour exploitation, right to social security, right
to highest attainable standard of physical and mental health, right to primary
education, freedom of movement and right to enjoy culture in community with
others, which seem to be especially relevant when it comes to migrants14.
Countries have the right to decide on access to their territories. However, upon
7 Witold Osiatyński, ‘Prawa człowieka i ich granice’ (Społeczny Instytut Wydawniczy Znak
2011) 59.
8 Antoine Pécoud and Paul de Guchteneire, ‘Between Global Governance and Human Rights
- International Migration and the United Nations’ (2007) 8 Georgetown Journal of International
Aairs 2, 115–124.
9 Ibid 120.
10 Colin Grey, ‘The Rights of Migration’ 47.
11 Massimo Frigo and Róisín Pillay (eds), ‘Migration and International Human Rights Law A
Practitioners’ Guide’ (Updated Edition International Commission of Jurists 2014) 37.
12 Oce of the High Commissioner for Human Rights, ‘Migration and Human Rights.
Improving Human Rights-Based Governance of International Migration’ (2012), 8 <hps://
www.ohchr.org/Documents/Issues/Migration/MigrationHR_improvingHR_Report.pdf>
accessed 20 June 2020.
13 <hps://www.un.org/en/universal-declaraon-human-rights/> accessed 16 June 2020.
14 The International Justice Resource Center <https://ijrcenter.org/thematic-research-guides/
immigration-migrants-rights/> accessed 22 July 2020.
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
the issuance of a permit to enter the territory of the country, migrant foreigners
obtain all the rights based on the international legal regulations being in force in
a given country15. It is worth remembering that migrants’ rights have limits and
are not absolute in most cases16. Similarly, for example, freedom of movement
and residence for persons in the EU has its limitations17.
The modern system of human rights protection is based on many legal acts
of universal (UN system) and regional (including the Council of Europe, European
Union) and also on the functioning of national sources. The rights of migrants
can be easily distinguished in such acts as the Universal Declaration of Human
Rights, Convention and protocol relating to the Status of Refugees the International
Covenant on Civil and Political Rights, the European Convention for the
Protection of Human Rights and Fundamental Freedoms18, the Charter of
Fundamental Rights of the European Union, as well as in many other regional
sources. For many years, issues related to the rights of migrant workers have
awoken great interest19. In this regard, it is worth mentioning the European
Convention on the Legal Status of Migrant Workers from 1977 or International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families Adopted by General Assembly resolution 45/158 of 18
December 1990. Currently the subject of migrant rights is expanding and gaining
additional attention. The content of Global Compact for Safe, Orderly and
Regular Migration is a perfect example in this regard. According to its text, ‘The
Global Compact is based on international human rights law and upholds the
principles of non-regression and non-discrimination. By implementing the Global
Compact, we ensure eective respect, protection and fullment of the human
rights of all migrants, regardless of their migration status, across all stages of the
migration cycle’20. It should be noted that Poland and four other countries were
against signing the pact.
15 Bożena Gronowska in B Gronowska ,T Jasudowicz, M Balcerzak, M Lubiszewski and R
Mizerski (eds), Prawa człowieka i ich ochrona, (Towarzystwo Naukowe Organizacji i
Kierownictwa“Dom Organizatora“ 2010), 468.
16 Ibid.
17 Paweł Dąbrowski, ‘Cudzoziemiec niepożądany w polskim prawie o cudzoziemcach’
(Wydawnictwo Uniwersytetu Warszawskiego 2011) 208.
18 See also additional protocols No. 4 (right to freedom of movement, prohibition of collective
expulsion of foreigners), No. 7 (procedural guarantees in the expulsion of foreigners, No. 12
(general prohibition of discrimination).
19 Colin Grey, ‘The Rights of Migration’ (2014) 20 Legal Theory 1, 47. Ryszard Cholewinski,
Paul de Guchteneire and Antoine Pécoud, Migration and Human Rights: The United Nations
Convention on Migrant Workers’ Rights (Cambridge University Press 2009); Alfred de
Zayas, ‘Migration and Human Rights’ (1992–1993) Nordic Journal of International Law 61,
243–252.
20 Content of the art. 16 of Global Compact for Safe, Orderly and Regular Migration.
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Wroclaw Review of Law, Administration & Economics [Vol 10:1, 2020]
Constitutions of various countries contain provisions that constitute the
source of human rights. The Constitution of the Republic of Poland does not
explicitly mention the rights of migrants, but focuses on the rights of foreigners.
If we take a closer look on its provisions, the two most important articles are an
introduction to our considerations. According to Article 30, [t]he inherent and
inalienable dignity of the person shall constitute a source of freedoms and rights
of persons and citizens. It shall be inviolable. The respect and protection thereof
shall be the obligation of public authorities. Secondly, anyone, being under the
authority of the Polish State, shall enjoy the freedoms and rights ensured by the
Constitution (art. 37 para. 1). It is emphasized in Polish literature that this
provision is the source of the principle of universality of the exercise of rights and
freedoms guaranteed in the constitution21. Today, this provision must also be
considered in the context of the rights and freedoms guaranteed by the EU
membership22. However, ‘[i]nternational human rights law does allow States to
treat citizens and non-citizens dierently if the dierence in treatment serves a
legitimate State objective and is proportional to its achievement’23. In particular,
citizens may entertain broader political rights. States in general may also decide
who is entitled to enter and remain in the country.
Exemptions from the principle of universality with respect to foreigners
shall be specied by statute (art. 37 para. 2). Therefore, every right and freedom
included in the constitution is also granted to foreigners, unless the law provides
otherwise. Article 37 para. 2 must be interpreted in accordance with art. 31 para.
3 of the Constitution. A foreigner is entitled to common and fundamental rights
of every human being based on such values as dignity, freedom and equality24. It
is highlighting that dierentiation of the position of entities may take place under
certain conditions. According to the jurisprudence of the Constitutional Tribunal,
these exceptions must be relevant, proportional and related to other constitutional
values, principles or norms that justify dierent treatment of similar entities25.
One must agree with the conclusion that concern for the common good means
21 Leszek Garlicki and Marek Zubik, ‘Artykuł 37’ in L Garlicki and M Zubik (eds), Konstytucja
Rzeczpospolitej Polskiej. Komentarz II (Second publish Wydawnictwo Sejmowe 2016) 186;
Jacek Chlebny, Wojciech Chróścielewski, Paweł Dańczak, Paweł Dąbrowski, Agnieszka
Liszewska and Rafał Rogala, Prawo o cudzoziemcach: komentarz (Wydawnictwo CH Beck
2020) 15.
22 A. Wróbel, Komentarz do art. 21 [w:] Karta Praw Podstawowych UE. (Komentarz, Warszawa
2013) 750–753.
23 The International Justice Resource Center <https://ijrcenter.org/thematic-research-guides/
immigration-migrants-rights/> accessed 22 July 2020.
24 Magdalena Kumela-Romańska, Administracyjnoprawny status cudzoziemca w Polsce
(Wolters Kluwer 2017) 106.
25 See the judgement of the Constitutional Court of 14 July 2015 (SK 26/14; LEX 175849)
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
respecting human freedoms and rights arising from the inherent and inalienable
dignity of a person26.
On the territory of the host country, a foreigner should always be treated
according to a certain standard (ordinary, privileged, special) and human rights
should always be respected. Unlawful actions can lead to state liability27.
A signicant part of constitutional rights and freedoms may be restricted. It
should be added that: ‘Any limitation upon the exercise of constitutional freedoms
and rights may be imposed only by statute, and only when necessary in a
democratic state for the protection of its security or public order, or to protect the
natural environment, health or public morals, or the freedoms and rights of other
persons. Such limitations shall not violate the essence of freedoms and rights’
(art. 31 para. 3). This article sets the limits for interference by public
administration28. It is important to underline that there are no grounds for
considering that the application of art. 31 para. 3 is excluded on the background
of the detailed regulations contained in art. 37 para. 229.
It should be noted that, in general, human rights can also be restricted. The
exception in this respect is ineligible rights. For example, according to art. 15 of
the Convention for the Protection of Human Rights and Fundamental Freedoms:
In time of war or other public emergency threatening the life of the nation, any
high contracting party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law. The legality of the repeal of rights is determined by material
and formal reasons30. The rst group includes: the nature of the emergency, the
scope of rights and freedoms subject to derogation, compliance with general
international law and proportionality of extraordinary measures (actions)31. The
formal premise relates primarily to the obligation to submit relevant information
to the General Secretary of the Council of Europe32.
26 Barbara Kowalczyk, ‘Polska jako dobro wspólne obywateli a migracje długoterminowe’
(2018) XIX Przedsiębiorczość i Zarządzanie 9, part 1, 52.
27 Jan Białocerkiewicz, ‘Status prawny cudzoziemca w świetle standardów międzynarodowych’
70.
28 Leszek Garlicki and Krzysztof Wojtyszek, ‘Artykuł 31’ in L Garlicki and M Zubik (eds),
Konstytucja Rzeczpospolitej Polskiej. Komentarz II (Wydawnictwo Sejmowe 2016) 55–71.
29 Ibid. 78.
30 Leszek Garlicki in L Garlicki, P Hofmański and A Wróbel (eds), Konwencja o Ochronie
Praw Człowieka i Podstawowych Wolności. Komentarz do artykułów 1-18 (Wydawnictwo
CH Beck, Warszawa 2010) 795–808.
31 Ibid. 779.
32 Ibid. 806.
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The concept of human rights assumed that an individual needed protection
from state power33. The history of the last few months shows that the state can
take advantage of the power with which it has been endowed. Under these extreme
conditions, the system of human rights protection is justied. It must be admitted
that some human rights may stay in conict with others34. For example, freedom
of movement must give way to the right to life. Public threats may lead to
derogation of some international obligations35. Withdrawal should be determined
by the degree of the threat, not its nature36. However, it is important that their core
should remain preserved. I fully accept the thesis that the legal status of a foreigner
is primarily determined by given state’s law, although the human person is
protected by international legal regulations containing rights and freedoms37.
This set of standards will be the boundary of national legislation.
The rst reactions corresponding to the spread of the virus could be observed
already in early March 2020. The regulation of 27 February 2020 of the Minister
of Health announced that the SARS-CoV-2 corona virus infection was covered
by the regulations on preventing and combating infections and infectious diseases
in humans38.
First of all, a few air connections were suspended, international border
controls were reintroduced, and some mass events were cancelled. Some local
governments and universities took action even before the national government
recommendations. Pursuant to article 46 Act of 5 December 2008 on preventing
and combating infections and infectious diseases in humans, the state of epidemic
threat or state of epidemic is announced and cancelled by the minister competent
for health matters in consultation with the minister competent for public
33 Tadeusz Jasudowicz, Administracja wobec praw człowieka (Dom Organizatora TNOiK
1996); Ferdinado Parente, Bronisław Sitek, Iwona Florek, Human rights in the functioning of
public administration = Prawa człowieka w funkcjonowaniu administracji publicznej;
(Wyższa Szkoła Gospodarki Euroregionalnej w Józefowie 2018).
34 Michael Freeman, Prawa człowieka (Sic! 2007), 11.
35 Anna Michalska, ‘Niebezpieczeństwo publiczne które zagraża życiu narodu’ in T Jasudowicz
(ed), Prawa człowieka w sytuacjach nadzyczajnych (TNOiK „Dom Organizatora“ 1997) 11.
36 Ibid, 25.
37 Jan Białocerkiewicz, Status prawny cudzoziemca w świetle standardów międzynarodowych,
74–75.
38 Regulation of the Minister of Health of 27 February 2020 on the SARS-CoV-2 coronavirus
infection (Journal of Laws of 2020, item 325).
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
administration, at the request of the chief sanitary inspector39. An epidemic
emergency was introduced on 13 March 2020, and an epidemic was declared on
20 March 2020.
The content of the regulation specifying limitations, orders and bans in
connection with the outbreak of the epidemic has undergone numerous changes. The
biggest restrictions were imposed around Easter. Among the orders and bans were:
− the movement of passengers in rail transport with crossing the border of the
Republic of Poland was suspended;
− the obligation to quarantine for 14 days from the day after crossing the state
border, including people living in the same household, with the exceptions
provided for in the regulation (e.g. drivers performing road transport as part
of international road transport);
− prohibition of movement of persons staying in the territory of the Republic
of Poland (one of the exceptions was meeting the necessary needs related to
the current aairs of everyday life);
− temporary limitation of business activities related to the organization of
events, fairs, exhibitions, conferences, cosmetic treatments, hotel services
and rehabilitation services;
− an order that during the exercise of religious events in a given facility there
should be a total of, both inside and outside the premises, not more than 5
participants (this order also applied to funerals);
− prohibition of public gatherings and private meetings, with the exception of
one’s closest relatives;
− the ban of the use of parks, lawns, promenades, boulevards, botanical
gardens, zoos, playgrounds and historic sites, as well as beaches;
− obligation to cover the mouth and nose in the public collective transport and
public places;
− moving around was possible if the social distance of 2 meters was kept;
minors up to 13 years old could only move if accompanied by the person
exercising parental authority, legal guardian or another adult;
− individual workstations must be at least 1.5 meters apart.
Pursuant to § 13, until further notice, the performance of tasks by a public
administration oce or organizational entities performing tasks of a public nature
may be limited to:
1) only tasks necessary to provide assistance to citizens;
2) specic tasks by any given oce or unit in a way that excludes direct service
of clients.
39 Act of 5 December 2008 on preventing and combating infections and infectious diseases in
humans (Consolidated text, Journal of Laws of 2019, item 1239, as amended).
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In fact, oces had been kept separate from contact with applicants.
An important topic for this discussion was the temporary suspension or
limitation of border trac at certain border crossing points, both external to the
EU and with other EU member states. According to the regulation of the Minister
of the Interior and Administration, from 13 March 2020 on the temporary
suspension or restriction of border trac at certain border crossing points, entry
restrictions to Poland40 applied to every person. The exceptions were Polish
citizens and foreigners who found themselves in the group mentioned in the
regulation. The exceptions were:
1) foreigners who are spouses or children of citizens of the Republic of Poland
or who remain under the permanent care of citizens of the Republic of
Poland;
2) foreigners with a Pole’s Card;
3) heads of diplomatic missions and members of the mission’s diplomatic and
consular sta, i.e. persons with a diplomatic rank and members of their
families;
4) foreigners with the right of permanent or temporary residence in the territory
of the Republic of Poland;
5) foreigners with the right to work in the territory of the Republic of Poland,
i.e. foreigners entitled to work on the same terms as Polish citizens, with a
work permit, a certicate of entry in the record on seasonal work, a declaration
of entrusting work to a foreigner in the territory of the Republic of Poland
Polish, who:
a) perform work on the territory of the Republic of Poland or
b) present documents proving that employment will begin immediately after
crossing the border;
6) foreigners who drive vehicles for the transport of passengers or goods,
provided their journey takes place as part of professional activities.
Additionally, the prohibition of landing aircraft carrying civilian passengers
in international trac had a signicant impact on the situation of migrants41. It
must be admitted that the prohibition did not apply to persons mentioned in the
previous paragraph returning to the territory of the Republic of Poland on
chartered aircraft. In fact, the lack of ights almost completely stopped migratory
movements.
40 Regulation of the Minister of the Interior and Administration of 13 March 2020 on the
temporary suspension or restriction of border trac at certain border crossing points, entry
restrictions to Poland (Journal of Laws of 2020, item 435).
41 Regulation of the Council of Ministers of 13 March 2020 on air trac bans (Journal of Laws
of 2020, item 436, as amended).
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
On 8 March 2020, the law on special solutions related to the corona virus
entered into force (Further: COVID Act)42. The very extensive content of the act
introduces, or allows for the introduction of, numerous obligations. Among many:
− obligation to install on a mobile device software, provided by the minister
responsible for computerization, used to conrm the compliance with
quarantine and use it to conrm the fullment of this obligation (art. 7e);
− possibility to set maximum prices and margins for products and products
that can be used in relation to counteracting COVID-19 or whose availability
is threatened;
− the possibility of imposing an obligation on a local government unit to
perform a specic task in connection with counteracting COVID-19 (art.
10);
− the opportunity to give the convicted person a break in the execution of the
imprisonment sentence (art. 14c para. 1);
− the opportunity to grant annual leave without the consent of the employee
and without the leave plan (art. 15gc).
The above legal regulation, apart from regulating the matters of every entity
located on the territory of Poland, contained solutions dedicated only to aliens.
There are a number of regulations during the epidemic that, in the context of
this discussion, are assessed positively:
− extension of the deadline for submitting applications for granting residence
permits (art. 15z);
− extension of the legality of the foreigner’s stay in the territory of the Republic
of Poland (art. 15z1);
− work if they have valid work permit in the territory of the Republic of Poland,
a valid declaration of the intention to entrust work or a valid seasonal work
permit (art. 15z1 paras. 2 and 3);
− extension of validity of residence cards (art. 15z2);
− extension of the validity of temporary identity certicates of a foreigner (art.
15z3);
− extending the repatriate’s stay in an adaptation centre for repatriates (art.
15z4);
− performance of work by a foreigner on conditions other than those specied
in the documents constituting the basis for the foreigner’s legal work (art.
15z5);
− extension of the validity period of residence cards of a family member of an
EU citizen, documents conrming the right of permanent residence,
42 Act of 2 March 2020 on special solutions related to the prevention, prevention and combating
of COVID-19, other infectious diseases and the crisis situations caused by them (Journal of
Laws of 2020, item 374, as amended).
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permanent residence cards of a family member of an EU citizen, Polish
identity documents of a foreigner and permits for tolerated stay (art. 15z6);
− extension the validity period of a national visa and temporary residence
permits (art. 15zd);
− extension of the validity period of work permits for a foreigner (art. 15zzq);
− extension of the deadline for a foreigner to leave the territory of the Republic
of Poland (art. 15zzza);
− extension of the period of a foreigner’s voluntary return (art. 15zzzb).
The COVID Act also contains exceptions to the foreigner’s obligation to
have a work permit and the obligation to extend a work permit and a seasonal
work permit (art. 15z7), extends the deadline for providing social assistance and
medical care referred to in the Act on granting protection to foreigners in Poland
(art. 15z8).. The law also allows the citizens of the following countries: Republic
of Armenia, Republic of Belarus; the Republic of Georgia, the Republic of
Moldova; the Russian Federation and Ukraine – to apply for a national visa in the
territory of this state, without having to submit the documents referred to in the
Act from 12 December 2013 on foreigners in person (art. 15z9). Unfortunately,
foreigners from other countries still have to apply personally.
The foundation of the assessment of the adopted legal solutions may be built
on various perspectives. The model of legal assessment may be based on the
constitution or norms of international law containing various human rights. The
question arises whether all the conditions for limiting human rights have been
respected. Have the material and formal conditions been met?
In accordance with the provisions of the Constitution, restrictions on the
exercise of constitutional rights and freedoms may be established only by statute
and only if they are necessary in a democratic state for its safety or public order,
or for the protection of the environment, public health and morals, or freedoms
and rights of other people; these limitations shall not violate the essence of
freedoms and rights (art. 31 para. 3). It is, therefore, about nding balance, not
eliminating a specic right or freedom43.
Two conditions can be inferred from the Constitution: prohibition of
excessive interference with rights and freedoms, and the necessity of restrictions.
Therefore, each time questions should be asked about the following: the usefulness
of the restriction to achieve the goal; the choice of the mildest restriction; the
43 Judgment of 20 March 2006 (K 17/05; OTK ZU no. 3/A/2006, item. 30).
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adequacy of the limitation to the purpose44. From the prohibition of excessive
interference, as the source of the general formula of proportionality, the
Constitutional Tribunal derives three requirements: usefulness, necessity and
proportionality in the narrow sense45.
Each of the introduced restrictions had a chance to be positively assessed.
First of all, there was a rational need for interference that directly contributed to
the achievement of a constitutionally justied goal. It is easy to indicate specic
values that were the aim of protection: life and health of citizens and foreigners
residing in Poland and, in particular, the protection of people with disabilities and
the elderly. Importantly, the introduced regulations, at least in the rst wave of
the spread of the virus, have largely achieved this goal. It should also be
emphasized that the restrictions on constitutional rights and freedoms served to
protect the values listed in art. 31 para. 3 of the Constitution. Pursuant to the
requirement of proportionality (in the strict sense), restrictions on constitutional
subjective rights cannot inadequately impose burdens on the subjects of rights
and freedoms. Restrictions should be directly related and proportionate to the
burden imposed46. Most of the measures that have been taken could be recognized
as proportional to the threat, especially, if we consider the state of knowledge
about the virus at the beginning of the pandemics.
Undoubtedly, the threat is current, the eects aect the entire nation and the
world, the functioning of social life has been disrupted and the uniqueness of the
crisis requires the use of extraordinary measures47. Once again, it must be
emphasized that the exceptions and limitations to constitutional rights and
freedoms can be accepted but must preserve the constitutional framework. Taking
into account criteria mentioned above, the restrictions were justied. However it
is worth noting that, according to the Constitution, only the introduction of
extraordinary measures in such case may temporarily limit some human rights
contained in it. This is determined by two basic criteria: there is a special threat
and it cannot be dealt using ordinary constitutional measures48, which means a
serious and immediate threat to the basic interests of society and the normal
functioning of state institutions49.
44 Judgment of 25 July 2013 (P 56/11; OTK ZU no. 6/A/2013, item. 85).
45 Ibid. Judgment of 16 October 2014 (SK 20/12; OTK-A 2014/9/102).
46 Judgment of 25 July 2013 (P 56/11; OTK ZU no. 6/A/2013, item. 85).
47 Leszek Garlicki in L Garlicki, P Hofmański and A Wróbel (eds), Konwencja o Ochronie
Praw Człowieka i Podstawowych Wolności. Komentarz do artykułów 1-18 (Wydawnictwo
C.H. Beck, Warszawa 2010) 801.
48 Leszek Wiśniewski, ‘Stany nadzwyczajne w projekcie nowej Konstytucji RP’ in T Jasudowicz
(ed), Prawa człowieka w sytuacjach nadzyczajnych (TNOiK „Dom Organizatora“ 1997) 151.
49 Krzysztof Wojtyszek, Granice ingerencji ustawodawczej w sferę praw człowieka w
Konstytucji RP (Kantor Wydawniczy „Zakamycze“ 1999) 250; Kazimierz Działocha,
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It should be noted that the limitation of the rights and freedoms contained in
the constitution could occur in the event of the introduction of one of the states of
emergency. Such a state may be introduced in situations of special risk, if ordinary
constitutional measures are insucient. According to art. 233 para. 3 of the
Constitution, the statute specifying the scope of limitations of the freedoms and
rights of persons and citizens during states of natural disasters may limit the
freedoms and rights such as freedom of economic activity, personal freedom,
freedom of movement and sojourn on the territory of the Republic of Poland, the
right to strike as well as freedom to work. Public compensations should cover
losses of individuals and companies.
According to art. 2 of the Act of 18 April 2002 on the state of natural
disaster50, the state of natural disaster may be introduced to prevent the eects of
natural disasters or technical failures bearing the hallmarks of a natural disaster
and to remove them. At the same time, according to the content of the cited legal
act on a natural disaster – it is understood as an event related to the action of
natural forces, in particular, infectious diseases of people. Restrictions on human
and civil freedoms and rights in a state of natural disaster apply, among others, to
natural persons residing or temporarily staying in the area where the state of
natural disaster was introduced (art. 20). Restrictions can range from ordering or
prohibiting a particular mode of movement or prohibiting certain types of
business.
It should be emphasized that neither of these states has been declared and the
state of the epidemic does not belong to this group. From this perspective, some
obligations and prohibitions do not have a sucient legal basis. From this
perspective, it could be said that the freedom of movement and other constitutional
rights and freedoms have been restricted contrary to the Constitution.
The introduced regulations primarily aected the freedom of movement,
both inside and outside the country. Generally, suspension of air trac and
closure of other countries’ borders in connection with the SARS-CoV-2 virus
pandemic disallowed many workers, member of families and repatriates, from
coming to Poland and probably had signicant impact on the situation of people
who were seeking protection in European countries. The actual lack of ights
indirectly blocked the majority of migratory movements based on air freight (e.g.
people who have a permanent residence permit in Poland and at the same time
have the citizenship of a country that does not border with Poland directly).
In accordance with the Regulation of the Council of Ministers of 7 August
2020 on the establishment of certain restrictions, orders and bans in connection
‘Komentarz do art. 228’ in K Działocha et al., L Garlicki (eds), ‘Konstytucja Rzeczypospolitej
Polskiej: komentarz. 4’ (Wydawnictwo Sejmowe 2005) 3.
50 Consolidated text Journal of Laws of 2017, item 1897 as amended.
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
with an epidemic51, the current regulations are created to precisely target the
source and prevent the spread of the epidemic at the same time. Still, persons
crossing the EU’s external border must undergo a 14-day quarantine. This period
may be shortened if the system’s medical diagnostic laboratory publishes a
negative result of the diagnostic test for SARS-CoV-2. However, test must be
nanced from public funds. This means that individuals or employers cannot
submit the results of tests conducted on their own. Such legal regulations may
result in a reduced supply of labour from abroad while the demand is increasing.
On the other hand, the regulation contains numerous exceptions to this obligation,
concerning, e.g. drivers, students and scholars.
A major problem indirectly aecting the implementation of human rights
was the closure of oces (including consulates). It should be remembered that it
was dicult to obtain, for example, a visa, which in some cases is a condition for
entry into the territory of Poland. Currently, it is impossible to arrange a visit to
the Greater Poland Voivodeship Oce. For instance, making an appointment to
give ngerprints is nearly impossible52.The lack of a residence card means that
some of the rights cannot be exercised. Such an example is the childcare benet
under the ‘Family 500+’ program. Additionally, recognizing the stay as legal
does not constitute an authorization to cross the border, which means that while
staying in Poland is not an issue, things become complicated when individuals
try to leave the territory and then return again. In this way, the negative eects are
felt by migrants whose family members are on both sides of the border. Moreover,
separating private entities from ocials will make it more dicult to meet the
standards relating to the right to a fair procedure and the right to an eective
remedy.
However, the assessment of the majority of other introduced solutions in
COVID Act can be perceived as acceptable. In particular, the above remark is
related to regulations aimed at regulating the legal status of foreigners residing in
and working in the territory of Poland. The regulations that allowed people called
quasi-citizens in literature to cross the border should also be praised. It is worth
mentioning that the term ‘quasi-citizens’ means foreigners who have lived in a
given country for a very long time, have family ties in a given country and who
are valuable in the light of the interests of the state53. The exception to assessment
invoked above is related to the local border trac. Local border trac refers to
the regular and frequent crossing of the EU’s external border by nationals of
51 Regulation of the Council of Ministers of 7 August 2020 on the establishment of certain
restrictions, orders and bans in connection with an epidemic (Journal of Laws of 2020, item
1356, as amended).
52 <https://rejestracjapoznan.poznan.uw.gov.pl/> accessed 20 August 2020.
53 Dorota Pudzianowska, Obywatelstwo w procesie zmian (Wolters Kluwer business 2013) 245.
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neighbouring non-EU countries residing in the border areas of the EU for
legitimate reasons54. The content of the legal provisions proves that this movement
has been suspended. It is worth noting that the essence of local border trac
assumes a preference for people who, for social, cultural or family reasons and
for justied economic reasons, often cross the border. The author of this study
believes that this group should also be covered by special regulations allowing
entry to Poland even during a pandemic. Generally speaking, every person who
obtained entry permission should enjoy freedom of movement. In my opinion,
issuing an entry permission shall limit the possibility of arbitrary closing of
borders.
The considerations presented above allow for the formulation of several
conclusions. The introduced restrictions must comply with the constitutional
provisions and basic human rights. In general, legal solutions introduced to limit
the spread of the virus limited migrants’ rights. However, in times of a crisis,
some human rights give way to the realization of highly protected values (such as
life or health). In terms of substantive limitations, they were in line with the
principle of proportionality. Foreigners who have been called quasi-citizens were
treated in the familiar way as citizens. According to constitutional provisions,
migrants who seek protection, work in the EU, have family relationships and who
are victims of tracking were given special consideration. Unfortunately, the
legislator seems to have forgotten about people who participate in local border
trac. At the same time, reasonable concern about the ban on ights should be
raised.
It should be clearly emphasized that restriction of the freedoms and rights
included in the Constitution requires the introduction of a state of emergency –
state of natural disaster. The remark mentioned above is in line with the standpoint
of the Commissioner for Human Rights55. It is worth noting that when the text
was written, individuals in other European countries also question the limitations
imposed by individual governments.
54 Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20
December 2006 laying down rules on local border trac at the external land borders of the
Member States and amending the provisions of the Schengen Convention (OJ L 405, 30
December 2006) 1–22.
55 Koronawirus. Sposób ograniczanie poruszania się po kraju i uczestniczenia w mszach
niezgodne z Konstytucją. RPO polemizuje z MZ <https://www.rpo.gov.pl/pl/content/
koronawirus-sposob-ograniczanie-poruszania-sie-po-kraju-i-uczestniczenia-w-mszach-
niezgodne-z-konstytucja> accessed 28 October 2020.
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Foreigners’ Rights in The Age of Pandemics – Migration Aspects
The experience gained so far allows us to propose to increase the EU’s
participation in crisis management. In this regard, the adoption of the Joint
European Roadmap towards lifting COVID-19 containment measures is
welcomed56. In particular, it is important that in this document the principle of
respect and solidarity between member states remains essential. The challenge
for the future may be the adoption of legal solutions allowing the issuance of
documents to foreigners whose country of origin has organized a return ight
from a member state other than their place of residence. There have been cases
which prove that this challenge has not been addressed properly.
To conclude, it seems tting to recall the words of Janusz Korczak, who was
a Polish and Jewish author, doctor and child rights activist of the early 20th
century. Korczak’s main message was ‘there are no children, there are people’57.
Today we are entitled and encouraged to say that there are no migrants (foreigners),
there are people.
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