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Obligation of a foreigner to return

A foreigner is obliged to leave Poland before the expiry of the period of stay to which he is entitled on the basis of a Schengen visa or a national visa, and before the expiry of such a visa.

A foreigner is obliged to leave Poland before the expiry of their temporary residence permit.

A foreigner is obliged to leave Poland within 30 days from the date on which the final decision became effective (or in the case of a decision issued by the second instance authority - from the date on which the decision was delivered):

- on refusing to extend a Schengen or national visa, granting them a temporary residence permit, a permanent residence permit, a long-term EU resident's residence permit or a decision on discontinuing proceedings in the proceedings or withdrawing an already held permit for a foreigner;

- on refusing to grant them a refugee status or subsidiary protection, on recognizing the application for international protection as inadmissible, on discontinuing proceedings on granting them international protection or a decision on depriving him of the refugee status or subsidiary protection, or

- on withdrawing their residence permit for humanitarian reasons.

A foreigner is obliged to leave Poland within 7 days from the date on which the reasons for not transferring them to a third country due to their health condition ceased to exist.

A foreigner staying in Poland under the visa-free regime is obliged to leave Poland before the expiry of the deadline provided for in the international agreement signed between the foreigner's country of origin and Poland on the waiver of the visa requirement.

WHO MAY BE GIVEN A FOREIGNER’S OBLIGATION TO RETURN?

The obligation of a foreigner to return may be issued in relation to a foreigner who:

  1. is or has been staying in Poland without a valid visa or other valid document entitling them to enter and stay in Poland, if a visa or other document is or was required;
  2. did not leave Poland after using the permissible period of stay on the territory of (all or some) Schengen countries to which they were entitled without the need for a visa, in any period of 180 days, unless international agreements provide otherwise;
  3. did not leave Poland after using the permissible period of stay indicated in the Schengen visa in any period of 180 days, or after using the permissible period of stay on the basis of a national visa;
  4. performs or has performed work without the required work permit or registered employer's statement on entrusting work to a foreigner, or has been fined for illegal performance of work;
  5. undertook business activity contrary to Polish law or
  6. does not have the financial resources necessary to cover the costs of stay in Poland, return travel to the country of origin or residence or transit through the territory of the Republic of Poland to a third country that will grant entry permission, and did not indicate reliable sources of obtaining such funds;
  7. The foreigner's data is entered on the list of foreigners whose stay in the territory of Poland is undesirable;
  8. The foreigner's data is entered into the Schengen Information System for the purposes of refusing entry if they stay in Poland as part of visa-free travel or on the basis of a Schengen visa (this does not apply to situations in whcih the basis of stay is a Schengen visa authorizing only entry and stay on the territory of Poland);
  9. For reasons of state defense or security or protection of public safety and order or due to the interest of Poland, they cannot stay in Poland;
  10. They crossed or attempted to cross the border unlawfully and were not apprehended immediately after crossing the border illegally constituting the external border of the Schengen area;
  11. They were sentenced by a final judgment in Poland to imprisonment subject to execution and there are grounds for conducting proceedings on transferring them abroad for the purpose of executing the sentence imposed against them;
  12. They stay outside the border zone where, according to the local border traffic permit, they may stay unless international agreements provide otherwise;
  13. They stay in Poland after the expiry of the period of stay to which they were entitled on the basis of the local border traffic permit unless international agreements provide otherwise;
  14. The foreigner's further stay in Poland will pose a threat to public health, which has been confirmed by a medical examination or to international relations of another European Union Member State;
  15. The purpose and conditions of the foreigner's stay in Poland are inconsistent with the declared ones, unless the law allows for their change;
  16. A decision was issued to refuse to grant refugee status or subsidiary protection, to recognize the application for international protection as inadmissible, to discontinue the procedure for granting international protection or to withdraw the refugee status or subsidiary protection, and the foreigner has not left the territory of Poland within the indicated period either they are in a guarded centre or in an arrest for foreigners.

WHEN SHALL THE RETURN OBLIGATION PROCEEDINGS NOT BE INITIATED?

Proceedings on the obligation of a foreigner to return shall not be initiated if:

  1. The foreigner has a refugee status or benefits from subsidiary protection;
  2. The foreigner was granted a residence permit for humanitarian reasons or a tolerated stay permit;
  3. The foreigner has been granted a temporary residence permit due to the fact that their stay in Poland is necessary due to the necessity to respect family life within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms;
  4. The foreigner has been granted a temporary residence permit due to the fact that their departure from Poland would violate the rights of the child as defined in the Convention on the Rights of the Child;
  5. The foreigner is a spouse of a Polish citizen or a foreigner who has a permanent residence permit or a long-term EU resident's residence permit (provided that the foreigner's stay does not threaten the defense or security of the state or the protection of public safety and order), unless the purpose of the marriage was to circumvent the law;
  6. The foreigner is staying in Poland on the basis of a Schengen visa which was issued for the purpose of arrival for humanitarian reasons, due to the interest of the state or international obligations;
  7. The foreigner is staying in Poland on the basis of a temporary residence permit, issued due to circumstances requiring a short-term stay in Poland,
  8. The foreigner is staying in Poland on the basis of a temporary residence permit issued to foreigners who are victims of trafficking in human beings;
  9. The foreigner has been granted a permanent residence permit or a long-term EU resident's residence permit in Poland;
  10. The foreigner has a residence permit granted by another country of the Schengen area (provided that the foreigner's stay does not threaten the defense or security of the state or the protection of public safety and order), unless the foreigner has not left to go to the country after being instructed about the obligation to leave Poland immediately;
  11. The foreigner is temporarily delegated to provide services in Poland by an employer established in another EU country, EFTA Member State, and if the foreigner has the right to stay and work in that country, if the decision on obliging the foreigner to return would be issued due to their stay in Poland without a valid visa or residence card;
  12. The foreigner may be immediately transferred to a third country on the basis of an international agreement on the transfer and admission of persons after having been arrested in connection with crossing the border against the law;
  13. The foreigner may be immediately brought to the border, if they were detained in the border zone immediately after an inadvertent crossing of the border against the law;
  14. The foreigner is staying in Poland on the basis of a certificate confirming the presumption that the foreigner is a victim of human trafficking;
  15. The foreigner may be transferred to another Member State of the European Union on the basis of the provisions on determining the Member State responsible for examining an application for international protection submitted in one of the Member States by a third country national or a stateless person;
  16. The foreigner is transferred to a third country at the request of the authorities of that country for the extradition of the prosecuted person in order to conduct criminal proceedings against them on the territory of that state or to execute the imposed penalty or a protective measure, or
  17. The foreigner is transferred to another Member State of the European Union as a person prosecuted under the European arrest warrant.

WHAT'S THE DEADLINE FOR THE RETURN?

The decision obliging the foreigner to return specifies the period of voluntary leave, which is 8 to 30 days, counted from the date of delivery of the decision. This decision is noted down in the foreigner's passport. The authority which issued the decision obliging the foreigner to return shall inform the foreigner in writing, in a language they understand, about the legal basis of the decision, and advise them whether and in what manner they may appeal against this decision.

The period of voluntary leave is not indicated if there is a probability of the foreigner's escape or it is required for reasons of state defense or security or the protection of public safety and order. This decision is immediately enforceable.

Note! The Commander-in-Chief of the Border Guard is the body to which one can appeal against the decision issued by the commanding officer of the Border Guard branch or the commanding officer of the Border Guard post in matters concerning the obligation of a foreigner to return, extension of the period of voluntary leave and withdrawal of the ban.

COMPLAINT TO A COURT

A foreigner who has received a decision obliging them to return may lodge a complaint with the voivodeship administrative court against the decision obliging them to return. However, Art. 331 of the Act on foreigners has been repealed, which means that lodging a complaint with the court does not guarantee the extension of the period for voluntary leave. A foreigner may be deported from Poland even before the court considers their application to stay the execution of the decision.

Note! On the day on which the decision obliging the foreigner to return becomes final, the national visa is invalidated by operation of law, the temporary residence permit and the work permit expire.

NO RE-ENTRY TO POLAND

The decision obliging the foreigner to return states that the foreigner is forbidden to re-enter Poland. This prohibition is issued to a foreigner for a period from 6 months to 10 years.

The re-entry ban is issued for the following periods:

1. From 6 months to 3 years - in cases in which the foreigner:

a) stays or has stayed in Poland without a valid visa or other valid document entitling him to enter and stay in Poland, if a visa or other document is or was required,

b) did not leave Poland after using the permitted period of stay in the territory of (all or some) Schengen countries to which they were entitled without the need to have a visa, in any period of 180 days, unless international agreements provide otherwise;

c) did not leave Poland after using the allowed period of stay indicated in the Schengen visa in any period of 180 days, or after the allowed period of stay on the basis of a national visa;

d) does not have the financial resources necessary to cover the costs of stay in Poland, return travel to the country of origin or residence or transit through the territory of the Republic of Poland to a third country that will grant entry permission, and has not indicated reliable sources of obtaining such funds;

e) has their data entered into the list of foreigners whose stay on the territory of the Republic of Poland is undesirable

f) has their data in the Schengen Information System for the purpose of refusing entry and stay if the foreigner stays on the territory of the Republic of Poland as part of visa-free travel or on the basis of a Schengen visa, excluding a visa authorizing only entry to the territory of the Republic of Poland and stay on the territory

g) crossed or attempted to cross the border illegally and was not detained immediately after crossing the border illegally as constituting the external border of the Schengen area

h) stays outside the border zone where, according to the local border traffic permit, they may stay, unless international agreements provide otherwise;

i) stays in Poland after the expiry of the period of stay to which they were entitled on the basis of the local border traffic permit, unless international agreements provide otherwise

j) the purpose and conditions of the foreigner's stay in Poland are inconsistent with those declared, unless the law allows for their change;

k) a decision was issued on refusal to grant refugee status or subsidiary protection, on recognizing the application for international protection as inadmissible, on discontinuation of proceedings for granting international protection or a decision on depriving them of refugee status or subsidiary protection and the foreigner did not leave Poland within the indicated period or stays in a guarded centre or in a detention centre for foreigners.

2. From 1 to 3 years - if the foreigner:

a) performs or has performed work without the required work permit, a registered employer's statement on entrusting work to a foreigner or was fined for illegal performance of work, or

b) undertook business activity contrary to Polish law.

3. From 3 to 5 years - if the foreigner:

a) has been sentenced by a final judgement in Poland to imprisonment subject to execution and there are grounds for conducting proceedings on transferring them abroad for the purpose of executing the sentence imposed against them;

b) the foreigner's further stay in Poland will pose a threat to public health, which has been confirmed by a medical examination, or to international relations of another European Union Member State.

4. From 5 to 10 years, if the foreigner:

a) may not stay in Poland for reasons of national defense or security or protection of public safety and order.

b) has received a decision of the Minister competent for internal affairs, at the request of the Commander-in-Chief of the Police, the Head of the Internal Security Agency or the Head of the Military Counterintelligence Service to oblige a foreigner to return, concerning a foreigner who is feared to be carrying out terrorist or espionage activities, or suspected of committing one of the crimes.

WITHDRAWAL OF THE NO-ENTRY PROHIBITION

The authority which issued the decision obliging the foreigner to return, at the request of the foreigner, may withdraw the entry ban, if the foreigner proves that:

- they fulfilled the obligations resulting from the decision obliging the foreigner to return (for example, they left Poland on the date indicated in the decision), or

- their re-entry to Poland or other Schengen countries is to take place due to justified circumstances, especially for humanitarian reasons, or

- they have been granted assistance in voluntary leave

The ban on the entry of a foreigner to Poland will not be withdrawn if:

- the entry or stay of a foreigner in Poland may constitute a threat to the defense or security of the state or the protection of public safety and order or violate the interests of Poland, or

- the foreigner has not paid the costs related to the issuance and execution of the decision obliging the foreigner to return, as they were obliged to pay, or

- it was issued after the foreigner had a decision issued to withdraw the entry ban, and 2 years have not elapsed since the decision was issued

 

Note! The entry ban is also not withdrawn if half of the period for which it was issued has not yet expired.

 

Legal basis

Act on foreigners of December 12, 2013 (unified text   Journal of Laws of 2020, item 35).

 

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