On Thursday, March 9, the Polish Parliament (Sejm) passed an amendment to the Act on Foreigners. The Act has been forwarded to the President for signature.
During the legislative process, we submitted our numerous comments to both houses of parliament, ultimately none of which were taken into consideration.
The amended law provides for a number of unfavourable changes, which are presented below:
- Commander in Chief of the Border Guard as an appeal body against decisions of the Border Guard authorities [Art. 1(28), (41) and Art. 5(2) of the amendment]
In the amended Act, the proposed competences of the Head of the Office for Foreigners are transferred to the Commander in Chief of the Border Guard as a higher authority in cases of:
● issuing and replacing a residence card to a foreigner who has been granted a residence permit for humanitarian reasons,
● issuing and replacing a “permit for tolerated stay” document,
● granting and withdrawal of consent for humanitarian reasons and tolerated stay,
● obliging the foreigner to return, extending the period for voluntary departure and revoking the re-entry prohibition,
● expulsion and revocation of a decision to expel an EU citizen or a non-EU citizen family member ( Art. 245(7), Art. 277(3), Art. 355(2), Art. 357(1) and (3), Art. 321(1) of the draft Act on Foreigners, and Art. 73d of the draft Act on the entry into, residence in and exit from the territory of the Republic of Poland of nationals of the Member States of the European Union and their family members).
- Shorter, 7-day time limit for appeal [Art. 1(29, (34), (41), (49), (51), (52)]
Pursuant to the amended Act, appeals against decisions on:
● issuing and replacing the residence card,
● issue and exchange of a “permit for tolerated stay” document,
● obliging the foreigner to return, extending the period for voluntary departure and revoking the re-entry prohibition,
● to determine the costs related to the issuance and implementation of the decision to oblige the foreigner to return,
● granting and withdrawal of consent for humanitarian reasons and consent for tolerated stay, shall be filed within 7 days from the date of service of the decision (Art. 245(7a), Art. 277(3a), Art. 321(2), Art. 341(2), Art. 355(3) and Art. 357(4) added in the Act on Foreigners).
- Reduction of the time limit for voluntary return [Article 1(36)].
Until now, the time limit ranged from 15 to 30 days. The amendment introduced a change to Article 315 of the Act on Foreigners reducing the lower limit of the voluntary return period from 15 to 8 days. This means that, in some cases, the foreigner will have just over a week to review the content of the decision, obtain legal aid and draft an appeal.
- The possibility of deportation before the case is heard by an independent court [Art. 1(43]
Article 331 of the amended Act on Foreigners, by virtue of which the enforcement of the decision on the obligation to return is suspended until the application to suspend the enforcement of the decision has been examined, when a complaint to the administrative court with such an application has been submitted.
- Extension of a foreigner’s stay in a guarded centre or detention centre for foreigners [Art. 1(56]
The amendments to Article 403(3a), (4) and (5) of the Act on Foreigners significantly extend the permissible period of stay of foreigners in guarded centres and detention centres for foreigners. Until now, as a rule, foreigners could stay in detention ordered under the Act on Foreigners for a maximum period of 12 months. Exceptionally, and only in the case of a complaint to an administrative court, this period could be extended to 18 months. The amendment to the Act introduces a general rule that detention of foreigners can last up to 18 months, i.e. after 6 months it will be possible to extend the stay in a guarded centre up to 18 months, regardless of whether a complaint has been lodged, i.e. even if the administrative procedure is still ongoing. The above amendment seems to be aimed at legitimising the tardiness of the administrative authorities and the lengthiness of return proceedings.
- Extension of the maximum period for which a prohibition on entry or stay within the Schengen territory may be ordered [Art. 1(39)].
The amendment extended the maximum period provided for in Art. 319 of the Act on Foreigners for which a prohibition of entry or stay in the territory of Schengen States can be ordered from the previous five years, to 10 years.
This will be the case if it is required for reasons of defence or state security or the protection of public safety and order or the interests of Poland, or if there is a fear that a foreigner may engage in terrorist or espionage activities or is suspected of having committed one of these offences.
- Extension of the maximum length of the entry prohibition alert to Poland and the Schengen area from 5 years to 10 years [Art. 1(63)].
The amendment to Art. 438 of the Act on Foreigners introduces a period of 10 years instead of 5 years for placing the data of a foreigner on the list of foreigners whose residence in the territory of the Republic of Poland is undesirable.
- Failure to serve the decision on the party [Art. 1(65]
Article 440a, added by the amendment to the Act, introduces the possibility of issuing a new type of decision to refuse entry and stay in the territory of Schengen States.
Such a decision to refuse entry and stay shall be final, it shall not be served and the provisions of the Code of Administrative Procedure shall not apply in the proceedings. With the introduction of the new regulation, the principle of two-instance proceedings has not been preserved. The cumulative effect of these provisions will be that a foreigner who is subject to a decision to refuse entry and stay will not have access to an effective remedy in these proceedings.
Such decisions will be issued in cases where the defence or security of the state or the protection of public safety and order so require; the foreigner has been sentenced in Poland or another Schengen State by a final judgment for an offence punishable by deprivation of liberty for more than one year, or has taken steps to obtain the entitlement to enter or stay in the territory of Poland or another Schengen State by circumventing the provisions laying down the rules and conditions governing the entry of foreigners into those territories or their stay therein, including European Union law.
- Order to stay in premises intended for foreigners who have been refused entry to the territory without court consent [Art. 1(75]
Pursuant to Article 461, the Commander of the Border Guard post may by decision order a foreigner to stay in rooms intended for foreigners who have been refused entry into the territory of the Republic of Poland. The period of stay in these premises may not exceed 7 days. The decision of the post commander may be appealed to the Border Guard Commander in Chief (and subsequently appealed to the administrative court).
Such residence in premises intended for foreigners who have been refused entry to the territory of the Republic of Poland is a deprivation of liberty within the meaning of Art. 5(1)(f) of the European Convention on Human Rights.
The amendment also introduces several positive changes:
- Electronic residence permit for children of Ukrainian citizens residing in Poland [Art. 9].
The Act also amends the Act on Providing Assistance to Ukrainian Citizens in Connection with Armed Conflict on the Territory of Ukraine (the ‘Ukrainian Special-purpose Act’) insofar as it relates to the possibility of downloading, storing and presenting an electronic document containing data on a child under parental authority, if the PESEL register contains the PESEL number of that Ukrainian citizen next to the child’s data.
- Possibility of producing Polish travel documents for foreigners residing in Poland whose documents have expired and cannot be renewed [Art. 1 (30)].
The amendment to the Act on Foreigners introduces a new Art. 252a enabling the issuing of a Polish travel document to foreigners who cannot turn to the public authorities of their country of citizenship to obtain travel documents.
The conditions for obtaining a Polish document are as follows:
- the loss, destruction or invalidity of one’s travel document;
- possession by the foreigner of: a permanent residence permit, a long-term EU resident’s residence permit, a temporary residence permit, subsidiary protection, or a residence permit for humanitarian reasons;
- submission of an application within the period specified in the legislation.
This provision will be of great importance especially for Belarusian citizens residing in Poland.