Guest post by Maja Łysienia*
Immigration detention of asylum-seeking unaccompanied children became legally permissible in Poland in January 2026 as a result of a 2025 amendment to Poland’s Law on International Protection. The Polish government insists that the amendment, which was adopted without public consultations, will help keep children safe despite the fact that it contravenes Poland’s obligations under the UN Convention on the Rights of the Child as well as EU and domestic law.
For years, Poland has been resistant to implementing the full prohibition of child immigration detention, which has been widely promoted, including notably by the UN Committee on the Rights of the Child. Between 2017-2024, 1,711 migrant and asylum-seeking children were deprived of their liberty in the country. According to national law (the Law on Foreigners and Law on International Protection), accompanied children can be detained (with their parents) irrespective of their age.
In contrast, all unaccompanied children under the age of 15 had been protected from detention. In addition, the detention of all asylum-seeking unaccompanied children was directly prohibited by Article 88a(3)(3) of the Law on International Protection. However, an amendment to this law adopted in November 2025 removed this prohibition, thereby enabling asylum-seeking unaccompanied children over the age of 15 to be placed in immigration detention starting in 2026.
Keeping Children Safe?
According to the Polish government, this change was needed to protect children from harm. Citing the Border Guard, which manages immigration detention centres in Poland, it stated that unaccompanied children regularly abused the ban provided for in Article 88a(3)(3) of the Law on International Protection by applying for asylum only to avoid detention. Upon release from the detention centre, they often escaped from foster care. With their whereabouts unknown, they were at risk of human trafficking and other violations of their rights. The government therefore maintains that detention is in the child’s best interests, as it is intended to keep them safe.
Observers in Poland have challenged the government’s argument. The Polish Children’s Rights Commissioner underlined that detention is never in the best interest of the child, while the Polish Human Rights Commissioner stated that the amendment “shifts the responsibility for the ineffectiveness of the childcare system onto the children and introduces the possibility of preventive detention based on the perceived risk of their future behaviour.” He concluded that “(t)he legislative response to such cases should be to strengthen the support system, not to limit the guarantees available to such minors.”
In a letter, a group of 12 NGOs also added that the government showed no proof that unaccompanied children abuse asylum proceedings. The fact that they often abscond from foster care in Poland, they argue, does not mean that the children are not in need of international protection.
Human Rights Violations and Flawed Legislative Proceedings
The Human Rights Commissioner, Children’s Rights Commissioner, and NGOs not only questioned the soundness of the government’s justification for the change but also highlighted the fact that the amendment violates international, EU, and domestic law. They indicated that the change is debatable from the standpoint of, inter alia, the Polish Constitution, the Convention on the Rights of the Child, the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights of the European Union, and the Reception Conditions Directive.
In their letter, the group of NGOs wrote that the government’s argument based on children’s safety overlooks the fact that “[the amendment] is inconsistent with Article 11(3) of Directive 2013/33/EU, which stipulates that unaccompanied children may be placed in a detention centre only in exceptional circumstances, while the newly established provisions do not introduce this significant limitation.”
The jurisprudence of the European Court of Human Rights was also highlighted. While the Court does not prohibit immigration detention of children, it restrictively approaches the cases of the long-term detention of children who were kept in inappropriate conditions. Already in six judgments, starting with Bistieva and Others v. Poland in 2018, the Court concluded that Poland violated Articles 5 and 8 of the ECHR by the protracted detention of accompanied migrant children. It also clearly stated that Polish immigration detention centres are not suitable for children as they constitute “a place of confinement similar, in many respects, to prisons or remand centres” (for example, see the 2025 judgment of K.G. and S.G. v. Poland). Moreover, the “protective custody” of unaccompanied children, especially in conditions unsuitable for children, has been repeatedly condemned by the Court (see H.A. and Others v. Greece).
Immigration detention of children also contravenes Poland’s responsibilities under international human rights law. The UN Committee on the Rights of Child noted in a 2017 general comment that such detention violates the “best interests” of the child, which is provided in the Child Rights Convention. According to the committee, “children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children. Any kind of child immigration detention should be forbidden by law and such prohibition should be implemented in practice.”
According to the Human Rights Commissioner, Children’s Rights Commissioner and NGOs, a further problem with the new law is that it was adopted without public consultation. They point out that the amendment of Article 88a(3)(3) of the Law on International Protection was not proposed in the initial version of the draft law. Instead, it was introduced during legislative proceedings, without proper explanation of the unaccompanied children’s specific situation and the related international and regional human rights standards. The consequences of the proposed change–especially upon children’s medical and psychological wellbeing–were also not scrutinised. No public consultation of the amendment was conducted, possibly to avoid opposition from civil society organisations and human rights bodies.
Going Forward
As of February 2026, all accompanied children irrespective of their age and all unaccompanied children over 15 years old can be deprived of their liberty in Poland for migration-related purposes. With the abolition of the ban on immigration detention of asylum-seeking unaccompanied children, the protection of their rights is now in the hands of the Polish courts. Under Article 397(2) of the Act on Foreigners, before deciding on the unaccompanied children’s detention, they must consider the degree of their physical and mental development, personality traits, the circumstances of their apprehension, and the personal situation justifying their placement in a detention centre. In practice, however, this safeguard has proven to be insufficient in effectively protecting children’s rights hitherto.
The Human Rights Commissioner, Children’s Rights Commissioner, and NGOs have called on the Polish government to withdraw the amendment and restore the ban on immigration detention of asylum-seeking unaccompanied children. The Association for Legal Intervention, the Global Detention Project’s partner, initiated a public petition in this regard. The two Commissioners also argued that the prohibition of immigration detention should be extended to all unaccompanied children (both in asylum and return proceedings) rather than abolished. However, for now, the government’s views on child immigration detention seem to be firmly fixed.
*Maja Łysienia is a Strategic Litigation Expert at Stowarzyszenie Interwencji Prawnej | Association for Legal Intervention.
