Belarusian woman cannot leave Poland due to a rare legalization method. To fix this, the law needs to be changed
A Belarusian woman living in Poland has found herself in a legal trap. Her Belarusian passport has expired, she cannot return to her homeland for a new one, and the alternative — a Polish travel document for foreigners — cannot be issued to her. Most writes why this situation has arisen.
Illustrative photo. Photo: "Nasha Niva"
This is because the woman is legalized in Poland through a rather rare method for Belarusians — via a "karta pobytu" (residence permit) as the spouse of an EU citizen, but not a Polish citizen. As a result, the woman is legally in Poland, but cannot leave its borders. Having studied this case, the Deputy Polish Ombudsman for Human Rights proposed changing the law to eliminate the loophole in the system.
Poland is quite lenient towards Belarusian citizens whose passports have expired. Since many of them cannot return to their homeland for political reasons to obtain a new identity document, a simplified procedure for obtaining a Polish travel document — a temporary replacement for a passport — is provided for Belarusians. For this, it is enough to have a residence permit (DNR, including temporary), issued on any grounds.
It should be noted that in this case, DNR refers to "karta pobytu" (residence permits): temporary residence, permanent residence, long-term EU resident card, as well as cards obtained based on international protection. These methods of legalization are regulated by the law on foreigners. As a rule, Belarusians use one of these mechanisms.
However, in Poland there is a separate document — a "karta pobytu" for a family member of an EU citizen. Its issuance falls under a different law — from July 14, 2006, which regulates the stay in Poland of citizens of other EU countries and their family members. For example, a Belarusian woman who marries a French citizen living in Poland can obtain such a card if she does not have EU citizenship and the spouses intend to live in Poland for more than three months.
Unlike the usual "karta pobytu" for Belarusians, the "karta pobytu" for a family member of an EU citizen is not among the documents on the basis of which a Polish travel document for foreigners can be obtained.
Even Polish roots didn't help
The Belarusian woman, whose case is cited by Deputy Ombudsman for Human Rights Stanisław Trociuk, faced exactly this contradiction. For political reasons, she cannot obtain a new passport in Belarus, and a Polish travel document cannot be issued to her as the spouse of an EU citizen.
The woman has Polish roots, thanks to which she received a "Karta Polaka" (Pole's Card), but even this does not change the situation. This is because she is legalized in Poland not on the basis of a permanent residence card, which is obtained through roots, but as the spouse of an EU citizen, not a Polish citizen.
It turns out that the woman is legally in Poland, but without a valid travel document, she cannot leave the country.
"This leads to a systemic loophole in the law, the consequence of which is the de facto 'imprisonment' of a foreigner in one migration regime without the possibility of using protection instruments provided for citizens of third countries, and without the possibility of leaving Polish territory, despite having the status of a family member of an EU citizen," writes Trociuk in a letter to the Minister of Internal Affairs and Administration of Poland, Marcin Kierwiński.
He noted that the legislator had previously recognized the exceptional situation of Belarusian citizens, allowing them to obtain a Polish travel document if it was impossible to obtain a passport from their country of origin. Therefore, it is unclear why this protection does not extend to Belarusian citizens who have married an EU citizen and legalized their stay in Poland as family members of an EU citizen.
What can be done
Trociuk notes that the loophole created in the system may violate the right to respect for private and family life, the principle of trust of citizens and foreigners in the state, and introduce "unjustified differences in the situation of foreigners depending on the formal migration regime."
"The absence of any travel document makes normal functioning in legal circulation impossible, creates difficulties for family life, and in extreme cases can lead to a state of de facto statelessness (apatridism)," Trociuk believes.
In this regard, the Deputy Ombudsman asked Minister Marcin Kierwiński to consider the possibility of submitting a legislative initiative that would allow obtaining a Polish travel document on the basis of a "karta pobytu" for a family member of an EU citizen. Or to provide for the possibility of changing the migration regime in special cases, i.e., legalization based on "karta pobytu" listed in the law on foreigners. Such special cases may include the permanent impossibility of using consular protection from the country of origin.
Not the first case
Although the situation in which the Belarusian woman found herself is quite rare, it cannot be called exceptional. In January, there was already talk of a similar case. Several years ago, Marina (names changed) emigrated from Belarus to Lithuania. There, the girl met Vytautas, a citizen of that country, and married him. Then they moved to Poland, where Marina received a "karta pobytu" for five years as the wife of an EU citizen.
In 2027, Marina's Belarusian passport expires, and she cannot return to Belarus for a new one due to the risk of persecution. The family began to wonder what to do next. And they also faced the fact that the "karta pobytu" was not mentioned in the list of documents that grant the right to a Polish travel document.
"Lawyers congratulated me on getting the card and told me to go get a normal residence permit," Marina said.
She planned to obtain a work residence permit in Poland, and then with it — a travel document for a foreigner. But she doubted how two different migration statuses would combine.