Obligation to return

Polish law lists 16 grounds for issuing a return obligation decision. Various situations are mentioned, but the most common are illegal work or unauthorized stay in Poland (e.g. due to the expiry of an old document).

The decision is issued by the Border Guard, but the control that may lead to the above decision can also be carried out by other authorities, such as the Police or the Labour Inspectorate.

It should be noted that continuation of the illegal stay in Poland beyond the deadline indicated in the decision may result in a fine of PLN 5,000.

Along with the obligation to return the Border Guards Officer issues a decision on re-entry ban for a period from 6 months up to 10 years. The more serious violation of the law the longer entry prohibition period. The ban may be lifted in some specific special situations which will be the subject of another analysis.

Although the situation of the detainee during the control seems difficult, obviously certain rights are granted to him regardless of how serious the potential violation is.

First of all, the detained person is entitled to require the support of an attorney who will ensure that all the activities are carried out correctly and along with the law. Moreover, these activities should be taken in the presence of a translator. Additionally, in some certain situations, the obligation to return may not be carried out but circumstances that are the basis for suspension of the obligations must be notified to the officials during the control. A report is prepared on the activities performed before the Border Guard, the content of which should be carefully checked and if something is untrue, it must be immediately reported to the officials. The protocol is binding and therefore, may become a basis for a possible appeal against the decision to higher authorities.

The Border Guardians, like any other person, make mistakes that may open the way for an invalidation of the decision of the second instance. An experienced expert – and this is exactly who our team consists of- can use such mistakes to your advantage and ensure that you will not have to leave Poland.

Besides the illegal stay or work, the main reasons for an obligation to return are the following circumstances:

• lack of sufficient financial resources;

• recognition as a persona non grata in the territory of Poland;

• the foreigner’s data are recorded 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 under visa-free travel or on the basis of a Schengen visa (the exception is a visa authorizing only the entry to the territory of the Republic of Poland and stay in this territory);

• the return is required by reasons of national defence or security, or the protection of public safety and public order, or the interests of Poland;

• attempt to cross or crossing the Polish border in the contrary to the law;

• convicting a foreigner by a final court judgment, if there are grounds for carrying out proceedings for transferring him abroad to execute the imposed sentence;

• the stay took place outside the border zone in which, according to the local border traffic permit, the foreigner was entitled to stay in;

• further stay of the foreigner in the territory of the Republic of Poland may constitute a threat to public health, which has been confirmed by a medical examination, or to the international relations of another European Union Member State;

• the visa or residence permit was used by the foreigner in contrary to the declared purpose (i.e. the tourist visa was used to obtain income);

• a decision was issued against him to refuse to grant refugee status or subsidiary protection, to recognize an application for international protection as inadmissible, to discontinue the proceedings to grant international protection, or a decision to deprive him of refugee status or subsidiary protection and he did not leave Poland within the time limit or in case one of the above decisions was issued during the foreigner’s stay in a guarded center/detention center for foreigners.

Author: Michał Nowakowski