Consequences of Illegal Stay in Poland

Illegal stay

Illegal stay – stay in breach of provisions on entry and  stay conditions of foreigners on the territory of the Republic of Poland.

The illegal stay  on the territory of the Republic of Poland takes place especially when the foreigner:

• Does not possess a valid visa or other valid document which entitles to entry and stay on the territory of Poland
• Has not left the territory of the Republic of Poland after exhausting the allowed period of stay,
• Has Illegally crossed or has attempted to illegally cross the border
• Has illegally worked
• Has undertaken an economic activity in breach of legal rules
• Does not possess sufficient means of subsistence for stay on the territory of the Republic of Poland
• His data have been inserted in SIS or in national data base for the purpose of the refusal of entry

 

Return decision

In case of the illegal stay of the foreigner on the territory of the Republic of Poland the administrative procedures on return is initiated. The proceedings on return are initiated and run by the commander of the Border Guard post or the commander of the Border Guard division.

 

Voluntary return

In the decision on return there may be determined the period for voluntary return of 15 up to 30 days counted since delivery of the decision. In case of the issuance of such a decision the foreigner is obliged to  leave the territory of Poland within an indicated deadline (exit to the territory of other UE/Schengen member state is not treated as an execution of the decision. The foreigner issued a decision with an indicated deadline for a voluntary return is entitled to take advantage of an assistance in voluntary return. The financing of such an assistance is ensured by the Commander in Chief of the Border Guard and may include in particular the cost of travel, administration fees  related to  an issuance of the travel document and visas or permits, the cost of alimentation during the travel or the cost of medical assistance.

 

Forced return

When the authority proceeding the case recognizes that there exist the risk of absconding or there exist the requirements of defence or security  of the state or security and public order the issued decision will not determine a period of time for voluntary return.

The decision without a period of time for voluntary return is executed by force.

The forced execution of the decision  may take place also when after the issuance of the decision with determined period  for voluntary return:

• There will be the risk of absconding
• The stay of foreigner on the territory of Poland  will be recognized as a threat for defence of security of the state
• The foreigner will not fulfill the obligation to leave the territory of the Republic of Poland deriving from the decision.

 

If the decision  on return is executed  by force, the foreigner may be obliged to cover the expenses. The amount of costs will be established by the administrative decision. If the costs are changed the decision may also be changed.

Depending on the circumstances constituting the basis for the issuance of the decision on return, the following persons may be charged with costs of the forced return :

1. The inviting person
2. The entity entrusting the work or function
3. Research entity, which admitted the foreigner for the purpose of the realization of the research project.

The forced execution of the decision on return as a rule results in insertion of data of the person in SIS for the purpose of refusal of entry. Therefore the entry ban relates not only to the territory of Poland but also the territory of other Schengen states.

Detention

In case of initiation of the proceedings on return, the foreigner may be detained for up to 48 hours. If the authority that detained person decides to send a request to the court for the placement of the person in the detention centre, the period of detention may be prolong for another 24 hours.

 

Precautionary measures

If the decision on return does not determine the deadline for voluntary return or the circumstances of the case indicate that such a decision may be issued, the border Guard authority may decide not to apply to the court for placement of the foreigner in the detention centre but oblige the foreigner to:

1. Periodically report to the appropriate Border Guard authority.
2. Deposit appropriate amount of financial measures
3. Deposit the travel document
4. Stay under indicated address

 

If the circumstances of the case indicates that the foreigner will not obey the decision on application of the above mentioned alternative measures to the detention or he already does not obey this decision then the person may be placed in the detention centre. The decision in this case is taken by the court.

Basically the period of stay in the detention centre does not exceed 3 months. This period may be extended when the period of execution of the return decision extends and the foreigner does not cooperate.

The maximum period of stay in the detention centre does not exceed 12 months. However this period may be extended for another 6 months when during stay in the detention centre the person applies for a refugee status or submits the complaint to the administrative court against the final decision on return together with the request for a suspension of the execution of the decision.

Extension of the period for voluntary return

the period for voluntary departure determined in the return decision may be extended if the foreigner is obliged to appear in person at public authority, his stay in Poland is required by: the  state interest, his personal situation deriving in particular from the length of stay on the territory of Poland family connections or the need of continuation of the education by his minor child.

For those reasons the deadline for voluntary departure may be extended at the request of foreigner also already after the return decision is issued.

The period of voluntary departure may not be longer than 1 year.

In case of the extension of the deadline the foreigner may be obliged to:

1. Periodically report to the appropriate Border Guard authority.
2. Deposit appropriate amount of financial measures
3. Deposit the travel document
4. Stay under indicated address

 

Entry ban

The decision on return will be accompanied with an entry ban on the territory of the Republic of Poland and other Schengen States. The period of an entry ban will be from 6 months up to 5 years, depending on  circumstances constituting the basis for the issuance of the decision.

 

Withdrawal of an entry ban

An entry ban may be withdrawn upon request of the foreigner if the foreigner presents that:

1. He executed obligations deriving from the decision issued.
2. His future entry on the territory of the Republic of Poland or other Schengen  States may take place because of justified reasons especially on humanitarian grounds.
3. The foreigner has been granted an assistance in voluntary return.

The authority examining the request on withdrawal of an entry ban takes account of in particular:

1. The circumstances of the issuance of the decision on return
2. The circumstances of the planned entry into the territory of Poland or other Schengen States.

The entry ban shall not be withdrawn if:

1. The entry or stay of the foreigner on the territory of Poland may constitute a threat to the defence or security of the state or the security  and public order of  may be in breach with the interest of the Republic of Poland.
2. The foreigner did not pay the costs of issuance or execution of the decision on return
3. The entry ban has been issued after the issuance of the previously issued entry ban and 2 years have not passed since that.
4. Half the time has not yet passed for which the entry ban was issued.

 

Other results of the decision

The day when the decision on return becomes final the national visa, the temporary residence permit and the work permit will be revoked by law.

If the decision on return has been issued on the reason of breach of the rules of stay on the territory of the Republic of Poland on the basis of the local border traffic permit, the day when the decision on return becomes final the local border traffic permit will be revoked by law.

The most important rights of an foreigner during the return proceedings

During the proceedings on return the foreigner has especially right to:

• Appeal against the decision on return issued by the commander of the Border Guard post or the commander of the Border Guard division. The appeal is lodged to the Chief of the office for Foreigners within 14 days since the delivery of the decision
• Lodge the request for the extension of the period for voluntary return of the Republic of Poland
• Use the translation services
• Comment the gathered evidences and materials before the issuance of the decision
• Act through representative.
• Lodge the application for an international protection.

Penal responsibility

The illegal stay results in the responsibility  of the foreigner under the law of offences. The foreigner who is staying on the territory of the Republic of Poland without the title to stay is subject to a fine.

The foreigner staying on the territory of the republic of Poland without the title to stay is subject to a fine. The foreigner who upon request of the appropriate authorities will not present documents entitling him to stay on the territory of Poland, the means of subsistence of the documents confirming the possibility to obtain them is also subject to a fine.

The foreigner who does not carry out the duties deriving from the proceedings on return:

• Does not leave the territory of Poland within the deadline deriving from the decision on return,
• Does not report periodically to the authorities indicated in the decision on the extension of the voluntary return,
• Does leave the place of stay  indicated in the decision on extension of voluntary return.

• Is also subject to a fine.

Source: Polish Border Guards