Return decision

Permission to stay tolerated

Tolerated residence is a national form of protection for third-country nationals and stateless persons against expulsion. In specific situations specified by law, it provides for the possibility of staying on the territory of Poland to a foreigner who meets the conditions for them to leave the territory Polish voluntarily or under duress, and it is not possible to include them in the residence permit for humanitarian reasons.

When conducting administrative proceedings regarding the foreigner's obligation to return, the Border Guard authority each time examines the conditions for granting the foreigner permission to stay for humanitarian reasons. If they occur, and it is not possible, in accordance with the law, to grant such consent, it is examined whether the foreigner can be granted permission for tolerated stay.

If the risks associated with returning to the country of origin or residence become revealed only after the end of the obligation procedure, then the Border Guard ex officio initiates proceedings to grant such consent. By way of exception, in a strictly defined case, granting such consent requires the foreigner to submit an application.

A foreigner has the right to appeal against a decision refusing to grant such consent to the Head of the Office for Foreigners.

The consent of tolerated stay plays a complementary role to other forms of protection against expulsion, such as refugee status, subsidiary protection, temporary protection, or asylum. You can find the necessary information about international protection procedures at the following link: https://udsc.gov.pl/uchodzcy-2/.

It provides a lower level of protection than a residence permit for humanitarian reasons – consequently, the scope of rights resulting from its granting is also narrower. A foreigner is not, among others, entitled to cross the border of the Republic of Poland. The decision to grant this consent may result in certain obligations regarding periodic reporting to the authorities and informing about each change of address.

A foreigner who has been granted this consent may not apply for a temporary residence permit in Poland or for a residence permit for a long-term EU resident. Instead, they can obtain a permanent residence permit.

In certain cases, this consent may be revoked and may expire. A foreigner may also renounce it.

Regulations

Tolerated stay is regulated in the Regulations of Chapter 3 of Section VIII of the Act of 12 December 2013 on foreigners (Articles 351-353).

Detailed explanation

A foreigner is granted permission for tolerated stay if the obligation to return:

• may be made only to a State in which, within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950,

• his right to life, liberty and security of person would be endangered, or

• they could be subjected to torture or to inhuman or degrading treatment or punishment, or

• could be forced to work, or

• could be deprived of the right to a fair trial or be punished without a legal basis, or

• is unenforceable for reasons beyond the control of the authority competent for the forced execution of the return decision for the foreigner and from the foreigner (point 2), or

• it may take place only to the State to which its issuance is inadmissible by virtue of a court decision or on the basis of a decision of the Minister of Justice on the refusal to extradite a foreign national (point 3).

In the latter case (point 3), this consent requires the foreigner to make an application if these circumstances have become apparent only after the end of the procedure for obliging them to return.

A foreigner is refused permission to tolerate stay if they do not meet the conditions necessary to grant it or, in certain cases (points 2 and 3), if they pose a threat to the defence or security of the state or the protection of security and public order.

Administrative proceedings in this respect are not subject to stamp duty.

The consent is granted for an indefinite period, and the foreigner is issued with a document called "Consent to tolerated stay", which they are obliged to exchange within the indicated periods (every 2 years).

This document confirms the identity of the foreigner but does not entitle them to cross the border of the Republic of Poland on its basis (it does not confirm their citizenship). More information about this document can be found here.

Foreigners who have been granted a tolerated residence permit are entitled to perform work without the need to obtain a work permit.

They have obligations related to periodic reporting to the competent authority of the BG and providing information about any change of residence, the failure to comply with which may result in its withdrawal (i.e., if it was granted on the basis of Article 351 point 2 or 3 of the Act on Foreigners).

This consent is also withdrawn in any case if there is no further need to provide the foreigner with protection, i.e., if the reason for granting it ceases (i.e., there is no further need to provide the foreigner with protection) or the foreigner leaves the territory of the Republic of Poland. This consent is also withdrawn in the above-mentioned case related to the threat posed by the foreigner.

The consent to stay for humanitarian reasons expires when the foreigner acquires citizenship of the Republic of Poland, as well as when they are covered by international protection, consent to stay for humanitarian reasons or obtaining a permanent residence permit in the Republic of Poland. A foreigner may also renounce it.

Remember!

This consent is not provided unconditionally – if there is no need for you to remain covered by it, then it is revoked.