A criminal sentence of a foreigner to imprisonment in Poland poses a serious risk to the legality of their stay in Poland. A criminal conviction may trigger a procedure requiring the foreigner to return to their country of origin and, consequently, deportation from Poland. Consequently, in many cases, even a seemingly minor offence, such as a conviction for drink-driving, may lead to the initiation of deportation proceedings if the authorities consider that the foreigner’s presence in Poland poses a threat.
It should also be remembered that a decision to oblige a foreigner to return includes a ban on re-entry into the territory of the Republic of Poland and other Schengen countries, and specifies the period of this ban, which is between 3 and 5 years.
In this publication, we discuss:
- the consequences of a criminal conviction for a foreigner in Poland,
- when a foreigner may be deported,
- what legal actions can help avoid deportation.
A foreigner’s criminal conviction and the right of residence in Poland
Pursuant to Article 302(1)(11) of the Polish Act on Foreigners, a decision to oblige a foreigner to return is issued to a foreigner when they have been convicted by a final judgment in the Republic of Poland to a custodial sentence subject to enforcement and there are grounds for conducting proceedings to transfer them abroad in order to enforce the sentence imposed on them.
However, it should be remembered that the mere fact of a foreigner’s conviction in a criminal law case in Poland is not a sufficient basis for issuing a decision on the obligation to return. The administrative authorities must demonstrate a real link between the conviction and the threat that the foreigner may pose to public order or national security. This means that each case requires an individual assessment of the circumstances, and a decision on deportation cannot be issued automatically solely on the basis of a criminal conviction against a foreigner.
A practical example from Polish case law:
“The mere fact that a foreigner has been convicted of a criminal offence does not constitute grounds for considering that there are reasons to oblige him to return. Only by demonstrating a link between the conviction and the existence of a real threat posed by the foreigner is it possible to invoke a real threat on his part. This requires making findings relating to the future, i.e. forecasting the consequences of the foreigner’s continued stay in Poland. Thus, a foreigner who decides to stay in Poland and declares their intention to integrate into the local community should take particular care to comply with the applicable legal provisions.” (judgment of the Polish Supreme Administrative Court of 24 January 2018, ref. no. II OSK 1720/16)
When does a criminal conviction not lead to the deportation of a foreigner?
First of all, in accordance with the cited Article 302(1)(11) of the Polish Act on Foreigners, a foreigner must be convicted by a final judgment. In practice, this means that:
- a decision to oblige a foreigner to return cannot be issued on the basis of a criminal conviction that is not final, i.e. one that is subject to appeal and an appeal has been lodged by the defendant;
- a criminal sentence against a foreigner must concern a custodial sentence that is enforceable, and therefore a criminal sentence imposing a custodial sentence that has been suspended or a restriction of liberty (e.g. community service, probation) does not constitute grounds for initiating deportation proceedings.
At the same time, the regulations provide for exceptions that may prevent the issuance of a decision obliging a foreigner to return. The most common case is the situation specified in Article 303(1)(4) of the Polish Act on Foreigners, i.e. when a foreigner:
- is the spouse of a Polish citizen or a foreigner holding a permanent residence permit or a long-term EU resident’s residence permit in Poland,
- and there are no considerations of national defence, state security or a threat to public order,
- and the marriage was not entered into solely for the purpose of circumventing the provisions on the entry, stay or departure of foreigners from Poland.
This provision means that marriage to a Polish citizen or EU resident can in many cases protect a foreigner from deportation, even if they have been sentenced to imprisonment.
Appeal against a decision to oblige a foreigner to return (deportation)
Pursuant to Article 310 of the Polish Act on Foreigners, a decision to oblige a foreigner to return may be issued by an administrative authority acting ex officio. In practice, this means that the commander of a Polish Border Guard unit or the commander of a Polish Border Guard post who has found grounds for issuing such a decision initiates administrative proceedings to oblige the foreigner to return. Only after these proceedings have been conducted can the Polish Border Guard take steps to deport the foreigner to their country of origin.
During the proceedings, the foreigner (acting personally or through a legal representative) should present all relevant arguments and evidence that may influence the decision on the return order.
Each case is unique, but the appeal against deportation in Poland should generally emphasize:
- strong family and social ties in Poland,
- humanitarian or health-related circumstances that may justify remaining in the country,
- previous stay and integration with society, including employment, education, or participation in local communities,
- mitigating circumstances related to any criminal convictions.
Presenting these circumstances may influence the decision regarding the return order and, in practice, significantly increase the foreigner’s chances of remaining in Poland.
Appealing a decision by the local Border Guard commander deporting a foreigner
A decision issued by the local Border Guard commander can be appealed to a higher authority, namely the Polish Chief Commander of the Border Guard, who conducts a full reassessment of the decision, examining both legal grounds and factual circumstances. Therefore, an appeal against a Border Guard decision should include all relevant evidence and arguments that could affect the outcome of the return order.
The appeal to the Chief Commander must be filed within 7 days of receiving the decision. This statutory deadline is relatively short, so the foreigner or their legal representative should act immediately to ensure the right to appeal is effectively exercised.
After the appeal procedure is concluded, the decision of the Chief Commander can be challenged in court by filing a complaint to the Voivodeship Administrative Court in Warsaw. This complaint must be submitted within 30 days of receiving the decision. Filing a complaint does not automatically suspend the execution of the decision, but both the court and the issuing authority may decide to suspend it until the case is resolved.
Summary
Not every criminal conviction results in deportation, and in many cases, there are real possibilities to avoid a return order.
Therefore, in the case of a foreigner’s conviction in Poland, it is crucial to take legal action during the preparatory or criminal proceedings. The key is to act quickly and effectively. Even when the case is at the stage of proceedings before the Polish Border Guard commander, it is still possible to present significant arguments and evidence that may influence the return order decision.
What legal steps should be taken if a foreigner receives a return order?
It is essential to act as quickly as possible to file an appeal within the statutory deadline. The appeal should present all relevant arguments and evidence that may lead to a change of decision. From our experience, there are ways to effectively counter deportation, but swift action is crucial.
What is a “statement of waiver of the right to appeal”?
A foreigner cannot appeal a deportation decision if they have previously signed a statement waiving the right to appeal. In practice, Polish Border Guard officers may sometimes encourage foreigners to sign such statements, and foreigners often agree without fully understanding the legal consequences. Therefore, it is essential to carefully read all documents before signing and avoid signing any documents that waive the right to appeal or that are not fully understood.
Do previous convictions abroad affect Polish authorities’ deportation decisions?
Yes. Previous convictions in other countries may influence Polish administrative authorities’ decisions regarding deportation. Authorities may consider a foreigner’s criminal past abroad when assessing:
– risk to public order or state security,
– the foreigner’s credibility and respect for the law,
– the ability to integrate into Polish society.
What are the most common mistakes made by foreigners that increase the risk of deportation?
From our experience, the most common mistakes made by foreigners that can increase the risk of a return or deportation order include:
1. Underestimating the legal consequences of offenses and crimes. Even minor infractions, such as driving under the influence, can trigger deportation proceedings.
2. Failure to cooperate with authorities or concealing information. Hiding prior convictions, addresses, or family circumstances can negatively affect the assessment of deportation risk.
3. Signing statements without legal consultation.
4. Failing to file an appeal within the statutory deadline or without legal assistance. This can close the path to an effective defense against deportation.
Does an appeal against a return order have to be submitted in a formal manner?
No. The appeal process is informal – it is sufficient that the content clearly shows that the person is dissatisfied with the decision. There is no requirement to use a specific form or particular wording. In practice, however, it is advisable to include all relevant circumstances and evidence that may influence a change in the decision. Even though the law does not require a formal structure, a clear and precise justification increases the chances of a positive outcome from the appellate authority.
What does it mean to suspend the execution of a deportation decision?
Suspending the execution of a decision temporarily halts the legal effects of an administrative decision until the authority or court examines the case on the merits. This means that if the court or authority decides to suspend, the return order will not be enforced in practice until a final decision is issued.
