Receiving a decision on the obligation to return, commonly referred to as “deportation,” is one of the most serious situations a foreigner can face in Poland. It means an order to leave the country and often comes with a re-entry ban. However, even in such a difficult position, there are legal avenues that may allow you to avoid or at least postpone deportation. Acting quickly and knowing your rights are crucial.
Introduction: decision on obligation to return – What does it mean?
The decision on the foreigner’s obligation to return is a formal administrative act issued by the Commander of a Border Guard post or unit. It orders a foreigner whose stay has been deemed illegal or who has violated other regulations to leave the territory of Poland within a specified period (usually 15-30 days). Most importantly, this decision almost always includes a ban on re-entry into Poland and the entire Schengen Area for a period ranging from 6 months to even 5 years (or longer in special cases).
Why might you receive a return decision? The most common reasons
The most common reasons for issuing a return decision include:
- Illegal stay: Exceeding the validity period of a visa, residence permit, or visa-free stay.
- Illegal border crossing.
- Working without the required permit.
- Remaining in Poland after receiving a final negative decision regarding stay legalization (e.g., residence permit) or international protection and failing to leave the country within the specified timeframe.
- Being deemed a threat to national defense, state security, or public order.
- Being listed in the Schengen Information System (SIS) with an entry for refusal of entry.
The first line of defense: appealing the decision
If you have received a decision on the obligation to return, you have the right to appeal to the higher authority, which is the Head of the Office for Foreigners (Szef Urzędu do Spraw Cudzoziemców) in Warsaw.
- Deadline: You have only 14 days from the date the decision was delivered to you! This is a critical and very short deadline.
- Where to file: You file the appeal through the authority that issued the decision (i.e., the Border Guard commander).
- Effect: Crucially, filing the appeal on time usually suspends the execution of the decision (i.e., deportation) until the appeal is decided by the Head of the Office for Foreigners. This buys you time to present your arguments.
- Content: The appeal should state why you disagree with the decision, presenting evidence and legal arguments.
The next step: complaint to the administrative court
If the Head of the Office for Foreigners upholds the return decision, the next instance is the Voivodeship Administrative Court (WSA) in Warsaw.
- Deadline: You have 30 days from the date the Head of the Office’s decision was delivered to file a complaint with the WSA.
- Effect: Filing a complaint with the court does not automatically suspend the execution of the decision, but you can include a motion to suspend its execution along with the complaint. The court may grant this motion if deemed justified.
- Ruling: The court examines the legality of the decision. If it finds a violation of law, it may annul the decision.
When is deportation impossible? Circumstances protecting the foreigner
There are situations where even a final return decision cannot be executed. This happens when:
The Principle of Non-refoulement (Prohibition of return to a dangerous country)
- Deportation would expose the foreigner to a risk to life, torture, inhuman or degrading treatment or punishment in the country to which they would be returned.
Right to Family Life and the Child’s Best Interest
- Execution of the decision would violate the right to private and family life under the European Convention on Human Rights (e.g., separation from a spouse or minor children who are Polish citizens or have regulated stay, with whom the foreigner has strong ties).
- Execution of the decision would contradict the rights of the child / best interests of the child.
Health Reasons
- The foreigner’s health condition prevents travel, or treatment in the country of origin is impossible, and interrupting therapy in Poland would endanger their life.
Tolerated stay or humanitarian stay – Legalization in specific cases
If the return decision is final but cannot be executed for the reasons mentioned above (danger in the country of origin, family, health, child’s rights), the foreigner may be granted:
- A permit for stay for humanitarian reasons OR
- A permit for tolerated stay.
These are forms of stay legalization granted in exceptional circumstances when return is impossible. They are not standard residence permits but allow legal stay and often work in Poland.
What NOT to do and what NOT to count on?
- Don’t ignore the decision: Pretending the problem doesn’t exist will only worsen the situation.
- Don’t file applications “last minute” after the deadline: Applying for a residence permit after your stay became illegal, or after receiving a return decision, generally does not stop the return procedure.
- Don’t assume marriage automatically cancels the decision: Marrying when you are already facing deportation or your stay is illegal does not, by itself, protect you from the execution of the return decision.
Ahmed’s story: appeal and the fight for family
Ahmed received a return decision because his application for another residence card was submitted late. He was devastated because his wife (a Polish citizen) and their one-year-old child lived in Poland. With a lawyer’s help, he filed an appeal within 14 days. In the appeal, he argued that his deportation would constitute disproportionate interference with his family life and would be contrary to the best interests of his child. Filing the appeal suspended the execution of the decision. After reviewing the case, the Head of the Office for Foreigners considered Ahmed’s family situation and, although upholding that the stay had been illegal, overturned the part of the decision regarding the entry ban, allowing Ahmed to potentially seek new legalization in the future (after leaving and obtaining a visa).
Summary: act quickly and with a lawyer’s help!
A decision on the obligation to return is a very serious matter, but it doesn’t always mean the end of possibilities to stay in Poland. Immediate action upon receiving it is crucial – primarily filing an appeal within 14 days. Deportation cases are complex and require knowledge of regulations and procedures. Help from an experienced lawyer specializing in immigration law can significantly increase your chances of a successful outcome.
Received a decision on obligation to return? You only have 14 days to appeal! Don’t waste time – contact our law firm immediately. We will help you assess the situation, prepare an appeal or court complaint, and explore all possible avenues to protect you from deportation.
