On 21 March 2023, the President signed the Act of 9 March 2023 Amending the Act on Foreigners and Certain Other Acts. The amendment was published in the Journal of Laws on 23 March 2023 and, with certain exceptions, will enter into force 14 days after its publication. The purpose of the amendment is to ensure the application of Regulations 2018/1860 and 2018/1861, dated 28 November 2018, of the European Parliament and of the Council (EU). These regulations govern the entry and stay of third-country nationals in the territory of Schengen States and Member States’ use of the Schengen Information System (SIS).
The amendment introduces significant changes to the administrative procedure for issuing and appealing against a decision requiring a foreigner to return. It also harmonises the organisation and terminology that are used in the Polish Act with Community regulations. The new solutions also make it easier to meet one of the key prerequisites for applying for a residence permit as a long-term resident of the European Union in the territory of the Republic of Poland.
Shorter deadline for voluntary departure
Until now, the Act on Foreigners specified that the deadline for a voluntary return (following a change in the terminology: the deadline for a voluntary departure) given in the decision requiring the foreigner to return is from 15 to 30 days. This complied with the standards of Directive 2008/115/EC. But Polish legislators noted that Community law provides a much smaller lower limit for this deadline, of seven days. Therefore, in accordance with the amendment, the authority empowered to issue a decision requiring a foreigner to return will be able to set a deadline for a voluntary departure at a minimum of eight days. The deadline is therefore being reduced by as much as seven days, but legislators are still treating foreigners somewhat more favourably than envisaged by the provisions of the Directive by setting the lower limit of the deadline at eight instead of seven days.
Deadline runs even while a residence permit is being applied for
The amendment repeals a provision of the Act on Foreigners under which the deadline for a voluntary return (following the amendment: the deadline for a voluntary departure) given in the decision requiring a foreigner to return did not start to run for the foreigner while that person was awaiting a decision on a permit to reside in the territory of the Republic of Poland.
Until now, if a foreigner’s request had launched administrative proceedings for the grant of a residence permit, but during those proceedings the foreigner then received a decision requiring return, that foreigner was not required to fulfil it due to what may be regarded as a suspension of the deadline for the voluntary departure. In the opinion of legislators, the foreigner’s right that was constructed in this way led to a somewhat fictitious and unjustified extension of that person’s stay in the territory of the Republic of Poland. The effect of this regulation was that it allowed the possibility of staying further in Poland after a final decision was received that refused to grant the permit. The basis then for this stay was appeal proceedings launched against the decision requiring return.
Obviously, this does not mean that within the meaning of the new regulations, a foreigner who has received a decision requiring return and who is still awaiting a decision on a residence permit will have to leave the territory of the Republic of Poland by the deadline stated in the decision. Such person will still have the right to appeal against the decision constituting the obligation, which, if the appeal is successful, will not result in the decision becoming final.
Appeal within 7 days to the Commander-in-Chief of the Border Guard
The amendment also includes certain systemic changes. The Commander-in-Chief of the Border Guard, and not the Head of the Office for Foreigners, will be the higher rank authority for cases concerning the obligation of a foreigner to return and all matters related to such proceedings. Under the new regulations, it is the Commander-in-Chief of the Border Guard who, while exercising official and systemic supervision over the commanders of branches and posts of the Border Guard, will also provide higher instance supervision.
This means that once the amendment has entered into force, the authority empowered to adjudicate on an appeal against a decision requiring a foreigner to return will be the Commander-in-Chief of the Border Guard, and not, as until now, the Head of the Office for Foreigners.
The amendment also shortens the deadline for lodging an appeal against a decision requiring a return. The hitherto wording of the Act on Foreigners referred to the Administrative Procedure Code, which specified the deadline for lodging an appeal as 14 days from the date of service of the decision. Now, foreigners who disagree with decisions that have been issued to them requiring them to return will have to appeal against them within 7 days, a shorter time than hitherto.
Extension of the ban on re-entry
Legislators have also introduced significant changes to the duration of the ban on re-entering the territory of the Republic of Poland and other Schengen States issued to foreigners who have been required to return. Hitherto, a commander of the Border Guard could impose such a ban on a foreigner for a maximum of 5 years.
The amendment extends the entry ban up to 10 years in two situations:
- With respect to a foreigner for whom there is concern of potential involvement in terrorism or espionage, or is suspected of having committed one of these offences,
- With respect to a foreigner who is required to return due to state defence or security considerations, or reasons of protection of public security or order, or in the interest of the Republic of Poland.
The ban on re-entry to the Schengen area has thus been tightened for those foreigners whom the appropriate authority has identified as posing the greatest threat to Poland’s security and thus a danger to other Member States. A direct consequence of the so-designed provision is also the extension of the duration for which such persons’ details will remain on the list of foreigners whose stay in the territory of the Republic of Poland has been deemed undesirable.
However, legislators treat differently those foreigners who have been banned from re-entering the Schengen area due to the fact that their details have been included in the register or the SIS. The entry ban of 3 to 5 years that was imposed on such persons until now, has been deemed too penalising due, among others, to the frequent lack of awareness among foreigners that their details have been entered. While not completely abandoning rigour in the issuance of re-entry bans in such cases, legislators have allowed a reduction in the duration of such bans, providing a lower limit of 6 months and an upper one of 3 years.
Changes to the list of undesirable persons
The amendment expands the list of foreigners whose details are to be entered on the list of undesirable persons. In drawing up this change, legislators sought to implement the provisions of the Treaty on the European Union in the extent in which Article 29 of TEU allows the Council of the European Union to adopt decisions that shape Member States’ restrictions in migration policy. A new premise for inclusion in the list is to be the finding that a foreigner’s stay in the territory of the Republic of Poland is undesirable due to decisions adopted by the Council of the European Union establishing restrictions on the right of entry and residence of certain persons, in particular persons who are included on sanction lists.
Easier confirmation of knowledge of the Polish language
In order to be able to apply for a permit as a long-term EU resident in the territory of the Republic of Poland, proof must be provided of knowledge of the Polish language at a minimum B1 level. Until now, the Act included a set list of documents that could confirm fulfilment of this requirement. Due to the large number of foreigners who were interested, access in many cases to the procedure for obtaining the required official certification of knowledge of the Polish language, i.e. the possibility of passing a certification exam, was nothing but an illusion. Indeed, the language certification system was not and is not suitable for dealing with such a large number of persons seeking to take the exam each year.
Acknowledging this problem, legislators announced in the Act an expansion of the list of documents that may constitute proof of the required level of knowledge of the Polish language. The full list will be defined in a regulation issued by the minister responsible for internal affairs in consultation with the minister responsible for higher education and science.
The amendment which has been adopted introduces significant changes to proceedings involving foreigners. The solutions that legislators have proposed are to streamline administrative procedures and make them more accessible to a wider range of third-country nationals who reside in Poland.
Aleksandra Jasinowicz, trainee adwokat, Employment and Global Mobility Practice