The Association for Legal Intervention submitted comments to the draft amendments to the Act on Foreigners.
We objected, among other things, to the shortening of the deadline for appealing a return decision from 14 to 7 days. Such a short deadline is an exception in the Polish administrative procedure. Furthermore, shortening the time limit for lodging an appeal is an extremely rare practice in Polish law. In our opinion, this change is discriminatory and we see no rational reason for it.
The only effect of the fact that a foreigner will stay on the territory of Poland for 7 days less will be a restriction of their rights, especially taking into account the language barrier and the lack of ex officio legal assistance. This particularly concerns persons detained in a guarded centre for foreigners, who have very limited contact with the outside world. There is a high risk that the shortening of the time limit for filing an appeal will lead to the fact that the remedy in the proceedings on the obligation to return will be illusory and ineffective in practice.
What else? The draft also envisions transferring the competence to examine the case in the second instance – instead of the Head of the Office for Foreigners, the appeal body will become the Commander-in-Chief of the Border Guard. In our opinion, such a change will not only fail to streamline the pending procedures, but may also result in their prolongation and lower quality of the issued decisions.
Another change is the repeal of the regulation on suspending the execution of a return decision following a complaint to the administrative court. The purpose of the previous regulation was to guarantee the right to an effective remedy. Its repeal is incompatible with EU law, according to which in a situation where there is a risk of a violation of the prohibition of torture, other inhuman or degrading treatment or punishment, the appeal should have an automatic suspensive effect. In practice, such a change means there is a very high risk that Poland will expel foreigners from its territory before the court has time to consider their case.
Although the current system is far from perfect, the proposed changes will certainly not improve it, but only significantly restrict the rights of foreigners.