Obligation, deportation, expulsion: these are the words that can give many migrants and their families sleepless nights. Andrzej Domalewski, an expert with many years of experience and practice in the field of migration law, at the request of the Foundation Ukraine, will try to present and explain in plain language a few issues related to deportation and clear up some doubts and fears that foreigners may face.
What is the return obligation imposed on a foreigner?
The decision to oblige a foreigner to return to his/her country of origin is an administrative decision issued by the Polish Border Guard authorities: commanding officers of Polish Border Guard units, commanding officers of Polish Border Guard branches and officers authorised by them under Article 310 of the Polish Act of 12 December 2013 on Foreigners. It replaced the previously issued decision on the obligation to leave the territory of the Republic of Poland and the decision on expulsion. In short, we can say that it is an administrative order for a foreigner to leave the territory of Poland, which also determines the duration of the ban on re-entry into this territory.
In this article, we will use the abbreviated term “the obligation decision”. It is issued under one or more conditions outlined in Article 302 (1) of the Polish Act on Foreigners. The Act specifies 16 cases where a foreigner may be found to break the regulations in force in Poland. They refer to various situations, including staying on the territory of Poland without a valid visa or another valid document authorising him/her to enter Poland and stay there, the performance of work or running a business contrary to the provisions of law or crossing the border illegally.
As required by law, the decision should outline the name of the issuing authority, the data of the person concerned, the text of the decision and its legal basis, the grounds for the decision and instructions for a foreigner. Also, it must be signed by an officer
authorised to issue the decision. For some time now, in the cases where the foreigner is obliged to return to his/her home country, the provisions of the law have allowed for any letters in his/her case to be exchanged through electronic communications or communicated by fax and delivered to a foreigner in the corresponding communication forms. To illustrate, a person crossing the border at the airport in Wrocław may be served the decision issued by the Commanding Officer of other Polish Border Guard branches by fax.
A foreigner who is subject to the proceedings on imposing the return obligation has several rights to be mindful of: the authority which conducts the proceedings is obliged to provide the foreigner who does not know Polish sufficiently with the assistance of an interpreter and to provide an oral or written translation of the legal basis of the decision, the decision outcome and instructions on the option to appeal against it in a language the foreigner understands,
What does the obligation decision specify?
Apart from the return obligation itself, the decision contains two important provisions. The first one refers to setting the deadline for voluntary return, i.e. the time limit within which the decision should be executed and the foreigner should leave Poland. The deadline is between 15 and 30 days and is calculated from the date of the delivery of the decision. In certain situations, e.g. when the foreigner needs to appear before a Polish public authority or when it is required by an exceptional personal situation of the foreigner, the Border Guard authority may extend this time limit.
The deadline for voluntary return may also be extended at the foreigner’s request. It may be submitted only once after the decision has been issued. In both cases, the deadline for leaving the territory of the Republic of Poland may be extended to a maximum of 1 year. A person who has been granted a decision with an extended deadline for its execution may additionally be obliged to report in person at specified intervals to the authority specified in the decision, to pay financial security, to deposit a travel document or another identity document or to reside at a place specified in the decision.
In specific cases, the Border Guard authorities may issue a decision obliging a foreigner to return without specifying the deadline for its implementation. This concerns cases where the foreigner is likely to escape or when it is required for the reasons of defence or protection of public security and order. This refers to situations where the foreigner crosses the border illegally or does not have any documents confirming his/her identity. The decision without a deadline will also specify the country to which the foreigner is to return. It is executed under compulsion and consists in the Border Guard bringing the foreigner to the border or to an airport or a seaport of that state.
The second important decision is the one banning the re-entry to the territory of the Republic of Poland and the other Schengen States. The validity period of the ban depends mainly on the reason for the decision. If the decision was issued because the allowed period of stay has expired, the re-entry ban may be issued for 6 months to 3 years.
A ban on re-entry for 1 to 3 years may be imposed on a foreigner who has performed work without a relevant work permit or registered employer’s statement on ordering work to a foreigner or who has undertaken business activity contrary to the relevant provisions in force in Poland. A ban for 3 to 5 years may be imposed under a decision issued because the foreigner’s further stay in Poland would pose a threat to public health confirmed by a medical examination. In such cases, a Border Guard authority may determine the duration of the ban at their discretion yet within the limits set out by the provisions of law. The authority’s decision in this respect may be influenced by the foreigner if he/she points to circumstances that support the application of the shortest possible period of the ban, e.g. a very short time of illegal stay. In the case of the obligation decision issued because it is justified by reasons of national security or defence, or the protection of public security and order, or the interest of the Republic of Poland, the entry ban period is 5 years.
How do I appeal against the obligation decision?
The obligation decision may be appealed against to the Head of the Office for Foreigners. It should be submitted to the authority which issued the decision in writing and in Polish. The time limit for the submission of the appeal is 14 days from the day of the delivery of the decision.
If you submit an appeal, the execution of the decision will be suspended, which means that you do not have to leave Poland until the outcome of the appeal is determined. It should also be noted that on the day the obligation decision becomes final and effective, the national visa held by the foreigner becomes legally invalid and the temporary residence permit and work permit expire. The decision of the Head of the Office for Foreigners may be appealed against to the Voivodship Administrative Court in Warsaw. The time limit to submit the appeal is 30 days from the date of delivery of the decision of the Head of the Office for Foreigners. Remember to submit your appeal together with a request to suspend the execution of the decision.
When do I have to execute the decision?
The decision should be executed within the deadline set out in this decision, i.e. as a rule, within 15-30 days of its delivery, unless the deadline has been extended by the issuing authority (up to a maximum of 1 year). If the obligation decision specifying the deadline for voluntary return was issued before the issuance of the decision on refusal to extend a Schengen or national visa or on discontinuing the proceedings on that matter, refusal to grant a temporary residence permit, refusal to grant a permanent residence permit or discontinuing the proceedings on that matter, refusal to grant a long-term EU resident’s residence permit, refusal to grant refugee status or subsidiary protection or on discontinuing proceedings on granting the foreigner international protection, the deadline for voluntary return is counted from the date on which one of the indicated decisions becomes final and effective, and if it is a decision issued by a higher instance authority, the deadline is counted from the date on which it was delivered.
Timely execution of the decision is very important because if the foreigner fails to voluntarily leave the territory of Poland within the required time limit, the foreigner will be enforced to execute the decision. An additional consequence of the enforcement of the decision is that the re-entry ban validity period may not be shortened.
Currently, due to the state of epidemic introduced on the territory of the Republic of Poland on 20 March 2020 and special statutory regulations in force, the deadline for the decision execution is automatically extended to 30 days following the date of the cancellation of the state of epidemic emergency or epidemic.
Assistance in the decision execution
One of the obligations of the authority issuing the obligation decision is to inform the foreigner about non-governmental organisations which provide assistance, including legal assistance. One of the forms of such assistance is the possibility for a foreigner who has been imposed with the obligation decision with a set deadline to voluntarily declare his/her intent to participate in the voluntary return programme implemented by the International Organisation for Migration (IOM). Within the framework of this programme, you can be granted assistance in obtaining travel documents if they are missing or buying tickets to the final destination in your home country. All the details in this respect are available at www.avr.iom.pl
When can I re-enter?
The option to re-enter the territory of Poland depends on the duration of the ban specified in the decision. Certain provisions allow foreigners to apply for the withdrawal of the re-entry ban before its expiry. To that end, you should prove to have met at least one of the conditions: you have met the obligations resulting from the decision; there are justified circumstances for your re-entry (in particular, humanitarian reasons) or you have been granted assistance in the voluntary return. When considering such an application, the authority will take into account the circumstances under which the obligation decision was issued and the circumstances under which the foreigner needs to re-enter Poland.
The ban on re-entry will not be withdrawn in the case where compulsory enforcement of the obligation decision has been imposed on a foreigner or in the case of foreigners whose entry or stay in the territory of Poland may pose a threat to national defence or national security, or the protection of public safety and order, or violate the interests of the Republic of Poland.
The ban on re-entry will not be withdrawn if a foreigner has failed to pay the costs related to the issuance and execution of the obligation decision. Also, the ban on re-entry will not be withdrawn if it was imposed after the decision on the ban withdrawal was issued to the foreigner and 2 years have not passed since that decision was issued, or half of the period for which the entry ban was issued has not expired yet. The decision on withdrawal of the ban on re-entry may be appealed against to the Head of the Office for Foreigners. The appeal should be submitted to the authority which issued the decision within 14 days from its delivery. The decision of the Head of the Office for
Foreigners in this matter may also be appealed against to the Voivodship Administrative Court in Warsaw.
If you need legal advice on the obligation decision that has been imposed on you, you are welcome to contact our staff at the IPM Migrant Information Point via social networks or website at https://www.instytutpm.eu.
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