The legislator agreed with our comments on solutions regarding the deadline for submitting an application for assistance in voluntary return.According to the proposed version of Art. 334(5)(1a) of the Act on Foreigners, the application for assistance in voluntary return shall be submitted no later than 7 days before the expiration of the period of voluntary return specified in the decision.At the same time, a new minimum period for voluntary departure is set to 8 days (proposed version of Article 315(1)(1)).This means that a foreigner would have to decide within one day whether he/shewishes to apply for assistance in voluntary return or not.We considered that such a procedure was not consistent with the intention of the European legislator expressed in Directive 2008/115/EC to prioritize voluntary return over forced return.
The legislator also agreed with our proposal to reformulate Art. 406(1)(6) of the Act on Foreigners in order to ensure compliance with Directive 2008/115/EC. Currently Art. 406(1)(6) provides that the decision to release a foreigner from the detention center is issued immediatelyex officio or at the request of the foreigner,by the Border Guard authorityto which the detention center is subordinated, if it is found that for legal or factual reasons execution of the decision is not possible.However, according to Art. 15(4) of the Directive, “The conditions for detention shall cease and the person concerned shall be released immediately if it becomes apparent that there are no longer reasonable prospects of removal for legal or other reasons, or that the conditions set out in Art. 15(1) are no longer met”.
In our opinion, improper implementation of Art. 15 of the Return Directive often led to unnecessary detention of foreigners.We argued that the appropriate implementation of the EU law would minimize the risk of cases of unreasonable arbitrary detention (for example, family members of an EU citizen, or foreign parents of children who are Polish citizens with whom these parents lived before detention).
Thanks to our intervention in this matter, the legislator proposed that this provision should be formulated as follows: “The decision to release a foreigner from the detention center is issued immediately ex officio or at the request of the foreigner, by the Border Guard authority to which the detention center is subordinated, if it is found that for legal or factualreasons, there are no reasonable prospects for the implementation of the decision obliging the foreigner to return”.
The opinions on the aforementioned changes are currently in progress.
The procedure along with full documentation on the draft act amending the Act on Foreigners and some other acts can be found on the RCL webpage.
The project is funded by the Active Citizens – National Fund program, financed by the EEA Grants
