Return decision

Detailed explanation

The return decision for a foreigner is issued and executed in cases strictly defined by law and in relation to specific categories of foreigners.

It is not possible to issue such a decision to nationals of the Member States of the European Union, Norway, Iceland, Liechtenstein, Switzerland, the United Kingdom – beneficiaries of the withdrawal agreement of the United Kingdom from the EU structures and certain members of their families who join them or stay with them in the territory of Polish. Nor may such a decision be addressed to, among others, members of the diplomatic and consular missions of foreign States and Turkish nationals who have acquired rights under Decision No. 1/80 of the Association Council of the Republic of Turkey and the EEC of 19 September 1980 on the development of the Association.

The foreigner's obligation to return is based on circumstances related to:

• crossing or attempting to cross the border of the Republic of Poland contrary to the law,

• illegal stay in the territory of Poland,

• performing work or conducting business activity contrary to applicable regulations,

• lack of financial resources necessary to cover the costs of stay on the territory of the Republic of Poland, return trip to the country of origin or residence or transit to a third country that will grant entry permission, and at the same time failure to indicate reliable sources of obtaining such financial resources,

• the entry of the foreigner's data into the list of foreigners whose stay on the territory of the Republic of Poland is undesirable,

• entering the foreigner's data in the Schengen Information System for the purposes of refusing entry, 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, with the exception of a visa authorizing only to enter the territory of the Republic of Poland and stay on this territory,

• requirements of defence or security of the state or protection of security and public order or related to the interest of the Republic of Poland,

• the foreigner's criminal record, then, if they have been sentenced by a final judgment in the Republic of Poland to a sentence of imprisonment subject to enforcement and there are grounds for conducting proceedings regarding their transfer abroad to execute the sentence imposed on them,

• stay outside the border zone in which, in accordance with the local border traffic permit, the foreigner may stay, unless international agreements provide otherwise,

• the threat that their further stay on the territory of the Republic of Poland will pose to public health (confirmed by a medical examination) or to the international relations of another Member State of the European Union,

• lack of compliance between the purpose and conditions of stay of the foreigner on the territory of the Republic of Poland with the declared ones, unless the law allows their change,

• issuing a decision refusing to grant refugee status or granting subsidiary protection, declaring an application for international protection inadmissible, discontinuing the procedure for granting international protection or a decision to deprive them of refugee status or subsidiary protection - in a situation where the foreigner has not left the territory of the Republic of Poland within the time and in the case referred to in Article 299(6)(1)(b), either stays in a guarded centre or in detention for foreigners.

Each of these circumstances may constitute an independent basis for obliging the foreigner to return. It may also be related to other circumstances.

In certain cases, even despite the existence of grounds for obliging the foreigner to return, the decision in this case is not issued. Proceedings on the foreigner's return obligation shall not be initiated and, if initiated, shall be waived if the foreigner:

• has refugee status or benefits from subsidiary protection or stays in Poland on the basis of a residence permit for humanitarian reasons or a permit for tolerated stay,

• has obtained one of the following residence permits:

• temporary residence permit granted on the basis of Article 187(6) or (7) of the Act on Foreigners, temporary residence permit due to circumstances requiring short-term stay (Article 181) or temporary residence permit for victims of trafficking in human beings (Article 176) or stays in Poland on the basis of a certificate confirming the presumption of being a victim of human trafficking,

• permanent residence permit,

• residence permit for a long-term EU resident on the territory of the Republic of Poland,

• is the spouse of a Polish citizen or a foreigner holding a permanent residence permit or a long-term EU resident's residence permit on the territory of the Republic of Poland and this is not opposed by reasons of defence or state security or protection of public security and order, unless the purpose of marriage or its existence is to circumvent the regulations,

• stays on the territory of the Republic of Poland on the basis of a Schengen visa issued for the purpose referred to in Article 60(1)(23) (humanitarian), authorizing only to enter and stay on the territory of the Republic of Poland,

• may be immediately transferred to a third country on the basis of an international agreement on the transfer and reception of persons after having been detained in connection with the crossing of the border contrary to the Regulations of law,

• may be brought to the border immediately if they have been apprehended in the border area immediately after inadvertently crossing the border contrary to the law.

The return decision is issued ex officio by the competent commander of the Border Guard branch or the commander of the Border Guard post.

The authority of a higher level in relation to the commander of the Border Guard branch or post in matters of obligations to return is the Head of the Office for Foreigners. The tasks of the Head of the OFF in the field of appeal proceedings in these cases are carried out by the Department of Legalization of Stay of the Office for Foreigners.

A foreigner is entitled to lodge an appeal with the Head of the Office for Foreigners against the decision of the first instance body. The appeal shall be lodged in writing, through the authority which issued the contested decision, within 14 days of its notification.

In appeal proceedings, the Head of the Office for Foreigners may:

• recognize the lack of legitimacy of the foreigner's obligation to return - then they will repeal the contested decision in its entirety and discontinue the proceedings initiated by the BG, explaining in the justification the reasons for the revocation of the decision, or revoke the decision in part regarding the refusal to grant a permit for humanitarian stay or a permit for tolerated stay and grant one of the aforementioned consents;

• claim that the necessary conditions to recognize the legitimacy of the foreigner's obligation to return have been met – then they will maintain the contested decision and explain their position in detail (while maintaining the legitimacy of the obligation, the Head of the OFF change certain elements of this decision, e.g., extend the deadline for voluntary return or modify the deadline for re-entry);

• state that the decision was issued in violation of the Regulations of the procedure, and the scope of the case necessary to clarify has a significant impact on its resolution and conduct an independent investigation to the extent necessary to settle the case or transfer the case file for reconsideration by the first-instance authority, ordering certain activities of the supplementary procedure.

Go to the "Administrative Procedures" ("Appeals") tab and the "Most Common Mistakes" tab for a more detailed explanation of the appeal procedure.

The return decision may specify a period for voluntary return, which is from 15 to 30 days and is counted from the date of notification of the decision. If such a decision is issued, the foreigner is obliged to leave the territory of Poland within the period specified therein – it should be stipulated that the trip to another EU Member State / Schengen State does not constitute the implementation of such a decision. If the decision specifies a deadline for voluntary return, then the foreigner has the opportunity to take advantage of assistance in voluntary return (this involves, among others, the possibility of covering travel costs, administrative fees related to obtaining a travel document and the necessary visas and permits, costs of food during the trip, as well as medical care costs).

A period for voluntary return is not specified in every case. If among others there is a risk of escape or if it is required for reasons of defence or security of the state or protection of security and public order, the return decision is enforced, and the foreigner themself or the guarantor of covering the costs of their stay in Poland (the person inviting or the entity entrusting the performance of work or a scientific unit that accepts the foreigner to the research project) will be charged with the costs of its implementation.

The return decision for a foreigner also includes a ban on re-entry into the territory of the Republic of Poland and other Schengen countries. This period ranges from 6 months to 5 years, depending on the circumstances that were the basis for the decision. This ban may be revoked at the request of the foreigner as part of the appropriate procedure (More in the tab: Re-entry ban).

On the day on which the return decision becomes final, by operation of law (i.e., automatically, without the need to issue additional decisions) the national visa is annulled, the temporary residence permit and the work permit held by the foreigner expire. If the return decision was issued in connection with a violation of the rules of stay in Poland on the basis of a permit to cross the border as part of local border traffic, on the day on which this decision becomes final by law, the permit to cross the border as part of local border traffic will be invalidated.