On Thursday, March 9, the Polish Parliament (Sejm) passed an amendment to the Act on Foreigners – the Act of March 9, 2023 amending the Act on Foreigners and certain other acts. It was signed by the President and promulgated on March 23, 2023.
We summarise the most important – in our opinion – alterations that the amendment introduces. Most of them will take effect from April 7, 2023:
The Commander in Chief of the Border Guard shall be the appeal authority against decisions of the Border Guard authorities.
The existing competences of the Head of the Office for Foreigners as an appeal authority are transferred to the Commander in Chief of the Border Guard in cases concerning:
- issuing and replacing a residence card to a migrant who has been granted a residence permit for humanitarian reasons,
- refusal to issue and exchange 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 the expulsion decision of the EU citizen or non-EU family member.
The legal regulation enters into force on April 7, 2023, however, the previous provisions shall apply to cases initiated and not concluded before that date. This means that if the proceedings were initiated, for example, on April 2, 2023, the Head of the Office for Foreigners will continue to be the appeal authority. If, on the other hand, proceedings are initiated on, for example, April 10, 2023, an appeal must be made to the Commander in Chief of the Border Guard in the event of a refusal decision.
The Commander in Chief of the Border Guard will also, as of April 7, 2023, be the authority competent to amend, revoke, annul or expire final decisions in the aforementioned cases, issued on the basis of the existing provisions in the cases:
[Changes introduced by Art. 1(28)(41) and Art. 5(2) of the amendment.
Changes Art. 245(7), Art. 277(3), Art. 355(2), Art. 357(1) and (3), Art. 321(1) of the Act on Foreigners, and Art. 73d of the Act on the entry into, residence in and departure from the territory of the Republic of Poland of nationals of the Member States of the European Union and their family members.]
The 7-day time limit for lodging an appeal
Migrants will only have 7 days to appeal decisions regarding:
- issuing and replacing a residence card to a migrant who has been granted a residence permit for humanitarian reasons,
- issue and exchange of a “permit for tolerated stay” document,
- obliging the migrant 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 migrant to return,
- the granting and withdrawal of consent for humanitarian reasons and consent for tolerated stay.
The regulation becomes effective on April 7, 2023, but the existing provisions apply to cases initiated and not concluded before that date. This means that the 7-day appeal period only applies to decisions issued in cases that will be initiated as of April 7, 2023, for cases initiated before this date the existing 14-day period applies.
[Change introduced by Art. 1(29), (34), (41), (49), (51), (52) of the amendment. Changes relating to Art. 245(7a), 277(3a), 321(2), 341(2), 355(3) and 357(4) added to the Act on Foreigners]
Shorter time limit for “voluntary return”
Starting from April 7, 2023, the period for voluntary departure from Poland may be determined as from 8 to 30 days from the date of delivery of the decision on the migrant’s obligation to return (previously the period was from 15 to 30 days). However, this means that, in some cases, the migrant will only have 8 days to familiarise themselves with the content of the decision, obtain legal assistance and draw up an appeal (if it is a decision of the first instance authority) or to complete their daily affairs and leave Poland.
The terminology also changes – the previous term of voluntary return is replaced by the term “voluntary departure” and, consequently, the deadlines for voluntary return specified in decisions obliging the migrant to return before the date of entry into force of this Act continue to run as deadlines for voluntary departure.
[Change introduced by Art. 1(36) of the Amendment. Change with respect to Art. 315 of the Act on Foreigners]
Possibility of deportation before the case is heard by an independent court
Starting from April 7, 2023, the legal regulation which prolonged the time limit for voluntary return or the time limit for compulsory execution of a decision obliging a migrant to return if a complaint against such a decision together with a request to suspend its execution is lodged with a provincial administrative court (the time limit was prolonged by law until the court considered the request to suspend the execution of the decision) is repealed. Consequently, migrants will be able to be deported from Poland even before the court has considered their application for a stay of execution of the decision.
In our opinion, the legal regulation should not apply to cases in which the complaint, including the application to suspend the enforcement of the decision to oblige the migrant to return, was filed before April 7, 2023 (protection of acquired rights). In these cases, we should still be dealing with the extension by law of the deadline for voluntary return until the date of the decision of the provincial administrative court to suspend the enforcement of the decision. We are concerned that due to the wording of Art. 10(1) of the amendment, which expressly states that proceedings in matters regulated, inter alia, by the Act on Foreigners, initiated and not concluded before the date of entry into force of the amendment, shall be governed by the current provisions, and that such proceedings are not court-administrative proceedings, the provision will be interpreted in such a way that as of April 7, with the repeal of the regulation, migrants will lose the protection against expulsion granted to them by law, as there are no transitional provisions in this respect.
[Change introduced by Art. 1(43) of the amendment. The amendment repeals Art. 331 of the Act on Foreigners]
Prolonged stay of a migrant in a guarded centre or detention centre for foreigners
The permissible period of stay of migrants in guarded centres and detention centres for foreigners has been significantly extended. Until now, migrants could stay in detention ordered under the Act on Foreigners for a maximum period of 12 months. Exceptionally, and only in the event of a complaint to the administrative court, this period could be extended to 18 months. The amendment to the Act introduces a general rule that the detention of migrants can last up to 18 months, i.e. after 6 months it is possible to extend the stay in a guarded centre up to 18 months, regardless of whether a complaint has been lodged and therefore even if the administrative procedure is still ongoing. The above change seems to be aimed at legitimising the tardiness of the administrative authorities and the lengthiness of return proceedings.
[Change introduced by Art. 1(56) of the amendment. Change concerning Art. 403(3a), (4) and (5) of the Act on Foreigners]
Extension of the maximum duration of the re-entry prohibition to Poland and other Schengen States
The maximum period for which a prohibition of entry into the territory of the Republic of Poland and other Schengen States may be imposed has been extended to 10 years (previously it was 5 years). This applies only to cases initiated and not concluded by April 7, 2023.
A 10-year prohibition will be able to be imposed if required for reasons of defence or state security, the protection of public safety and order, the interests of Poland, or if a migrant is feared to be engaged in terrorist or espionage activities or suspected of committing one of these offences. Following the extension of the period for which an entry prohibition may be issued, the duration of the entry prohibition alert in the list of migrants whose stay on the territory of the Republic of Poland is undesirable is also extended to 10 years.
Furthermore, if the migrant does not pay the amounts due for the costs related to the issuance and enforcement of the decision on the migrant’s obligation to return before the expiry of the period of the adjudged prohibition, the prohibition of re-entry into the territory of the Republic of Poland and other Schengen area States is extended by force of law until the date of payment of the amounts due, not more than up to 5 years. This regulation does not apply to a re-entry prohibition ordered in a decision to oblige a migrant to return issued on the basis of previous legislation
[Changes introduced by Art. 1(39), Art. 1(63) of the amendment. Change concerning Art. 319 and 438 of the Act on Foreigners]
New type of decision – refusal of entry and stay within the Schengen States
Starting from April 7, 2023, the Head of the Office for Foreigners became competent to issue a new type of administrative decision – a decision to refuse entry and stay in the territory of Schengen States.
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; when the migrant has been sentenced in Poland or another Schengen State by a final judgment for an offence to a term of imprisonment of more than one year, or when the foreigner has acted in circumvention of the provisions on the rules and conditions for entry into the Schengen States in order to obtain the entitlement to enter or stay on the territory of Poland or another Schengen State.
The decision on refusal of entry and stay issued by the Head of the Office for Foreigners is final, it is not delivered to the migrant and the provisions of the Code of Administrative Procedure are not applied in the proceedings on its issuance. As a consequence, a migrant against whom a decision to refuse entry and stay in the territory of the Schengen States is issued will not be able to appeal against it.
[Change introduced by Art. 1(65) of the amendment. Change concerning Art. 440a introduced into the Act on Foreigners]
Detention of migrants refused entry to Poland in special rooms – without court consent
The Commander in Chief of the Border Guard post may, by means of a decision, order a migrant to stay in rooms intended for migrants who have been refused entry to the territory of Poland. The period of stay in these premises may not exceed 7 days. The decision of the Commander of the post may be appealed to the Commander in Chief of the Border Guard (and subsequently appealed to the administrative court). This provision means, in practice, that persons refused entry to the territory of the Republic of Poland will be temporarily deprived of their liberty without court approval.
[Change introduced by Art. 1(75) of the amendment. Change concerning Art. 461 of the Act on Foreigners]
The amendment also introduces some positive changes:
Electronic residence permit for children of Ukrainian citizens residing in Poland
The amendment also amends the so-called Special-purpose Act of Ukraine. The new legislation introduces the possibility of downloading, storing and presenting an electronic document containing data on a child under the parental authority of a Ukrainian citizen, if the PESEL register includes the PESEL number of that Ukrainian citizen next to the child’s data.
[Change introduced by Art. 9 of the amendment. Change concerning Art. 10 of the Act on Assistance to Citizens of Ukraine in Connection with the Armed Conflict on the Territory of that State]
New categories of migrants authorised to obtain a Polish travel document
The amendment introduces a provision enabling the issuance of a Polish travel document to migrants who cannot apply to the public authorities of their country of citizenship to obtain travel documents. Although the regulation enters into force on April 7, 2023, the application for a Polish travel document will become effective when the minister responsible for administration issues an ordinance specifying the citizenships that entitle a migrant to apply for a Polish travel document, as well as when migrants may apply for this document. Holding the citizenship specified in the regulation and submitting the application within the deadline specified in the regulation are one of the conditions for obtaining a Polish travel document for a migrant. Additional requirements are the loss, destruction or expiry of one’s travel document and the possession by the migrant of a permanent residence permit, an EU long-term resident’s residence permit, a temporary residence permit, a subsidiary protection, or a residence permit for humanitarian reasons
[Change introduced by Art. 1(30) of the amendment. Change concerning Art. 252a introduced in the Act on Foreigners]