12/06/2023
Changes in migration law
On 7 April 2023, an amendment to the Act on Foreigners and certain other laws will enter into force (with the exception of certain regulations entering into force at later dates). Among others, the new regulations adapt the national law to the changes within the EU in the Schengen Information System and modify the existing competences of the Head of the Office for Foreigners.
Ensuring the conditions for the application of the provisions laid down in the of European Parliament and Council Regulations (EU) 2018/1860 and 2018/1861
Regulation 2018/1860 establishes a new system for exchanging information between Member States which use the SIS on the decisions forcing the return in respect of third-country nationals who illegally remain on the territories of Member States and to monitor if the foreigners covered by the changes have left the territory.
While the Regulation 2018/1861 introduces more detailed regulations on entries in SIS and mutual consultations between Member States which use SIS for the purpose of refusing the entry and stay of third-country nationals into Schengen area countries, as well as the mandatory time frame of such consultations.
The amending act introduces mainly regulations of a competence nature by indicating authorities competent to perform the tasks provided in the regulations, which complete the regulations introduced by the Act of 1 December 2022 amending the Act on the participation of the Republic of Poland in the Schengen Information System and the Visa Information System and certain other acts (Journal of Laws, item 2642). The amendments also aim to make the return of illegally staying third-country nationals more efficient.
Changes to the appellate authority in cases of obligation of the foreigner to return (and related cases) and the rules governing the conduct of these proceedings
The Act transfers part of the existing competences of the Head of the Office for Foreigners to the Commander in Chief of the Border Guard, as a higher level authority in relation to commanders of Border Guard divisions and posts. The amendment applies to the procedures in administrative cases:
The foreign national’s obligation to return, Extension of the time limit for voluntary departure (previously the time limit for voluntary return – nomenclature change), Revocation of the re-entry ban,The granting of a residence permit for humanitarian reasons and a permit for tolerated stay, Withdrawal of humanitarian residence permits and permits for tolerated stay, Issuing or replacing a residence card to an alien who has been granted a residence permit for humanitarian reasons, and Issue or exchange of a “permit for tolerated stay” document, The transfer of a foreigner to another Member State of the European Union, a Member State of the European Free Trade Association (EFTA) – a party to the Agreement on the European Economic Area or the Swiss Confederation (on the basis of an international agreement on the transfer and reception of persons in force on 13 January 2009), Expulsion of an EU citizen or non-EU family member, Revoking the decision to expel an EU citizen or non-EU family member,
In this context, it should also be noted that the time limits for appeals to the Commander-in-Chief of the Border Guard in cases of, for example, obliging a foreigner to return, will be 7 days.
The minimum period of voluntary departure that can be specified in the decision to oblige the foreigner to return will be 8 days, instead of the previous 15 days.
In addition, the maximum period of the re-entry ban in the decision on the foreigner's obligation to return and the validity of the entry of the foreigner’s data in the list of foreigners whose stay on the territory of the Republic of Poland is undesirable will be extended to 10 years (currently, in both cases, the maximum period is 5 years) and this will apply to cases in which the relevant decision or entry is justified by reasons of defence, state security or the protection of public security and order.
At the same time, the authority issuing the decision on the foreigner’s obligation to return specifying the deadline for voluntary departure will be given the possibility under the new provisions to waive the ruling on the prohibition of re-entry into the territory of other Schengen States. The fundamental premise will be an assessment that there is a high probability that the foreigner, if re-entering the territory of Schengen, will comply with the legal order, including the provisions of migration law.
The Commander-in-Chief of the Border Guard will also become the authority solely responsible for the tasks of assisting foreigners in their voluntary return and assistance related to the transfer of a foreigner to another Member State of the European Union responsible for examining an application for international protection under Regulation 604/2013
