An alien’s access to the files in the proceedings concerning the obligation to return – comments de lege lata and de lege ferenda

Abstract

Aliens who are parties to expulsion proceedings have the right to view their files, make notes and copies, and demand that notes or copies of the case files be authenticated. In each case, this must be justified by the interests of the party (Article 73(1) and (3) of the Code of Administrative Procedure [CAP]). However, the legislator stipulated that the law provided for in Article 73 of the CAP shall not apply to case files which contain classified information (‘secret’ or ‘top secret’), neither shall it apply to other files that the public administration body has excluded due to their being contrary to State interests (Article 74(1) the CAP). This means that records of the proceedings are available neither to the party nor the counsel. The aim of this paper is, therefore, to examine whether the Polish legal order includes procedural mechanisms which  accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of decision obliging foreigners to return and, on the other hand, the need to ensure sufficient compliance with an aliens’ procedural rights, such as the right of access to the files and the right to a defence.