Returning to the topic of the planned amendment to the Act on Foreigners – form No. 2865, we proceed to discuss the main content of the objective and the need for full implementation of the Regulation of the European Parliament and of the Council (OJ EU L 312 of 7.12.2018, p. 1, as amended) and its proper implementation into Polish legal norms, we present details of the proposed solutions and changes.
Article 3 of Regulation No. 2018/1860. Entering alerts on return into the Schengen Information System (SIS)
Article 3(1) of Regulation 2018/1860 stipulates that Member States shall enter alerts in the Schengen Information System on third-country nationals who are the subject of a return decision, in order to enable verification of compliance with the obligation to return and to facilitate the enforcement of return decisions. An alert on return shall be entered in the Schengen Information System immediately after a return decision has been issued.
However, as provided for in Article 3(4) of Regulation No 2018/1860, the period for voluntary departure granted in accordance with Article 7 of Directive 2008/115/EC shall be immediately recorded in the return record. Furthermore, any extension of this period shall be recorded in the record.
In turn, in accordance with Article 3(5) of Regulation No 2018/1860, it is specified that any suspension or postponement of the deadline for the execution of a return decision, including as a result of an appeal, shall also be immediately recorded in the return record.
On the basis of the amendment in question – in order to introduce legal conditions for the application by Polish authorities of, among others, Article 3 of Regulation No. 2018/1860, the draft act provides for the addition in Section VIII of the Act of 12 December 2013 on foreigners entitled “Control of the legality of the stay of foreigners on the territory of the Republic of Poland and obliging a foreigner to return”, Chapter 2a entitled “Entering, updating and deleting in the Schengen Information System for the purposes referred to in Article 3 paragraph 1 of Regulation No. 2018/1860, data of foreigners to whom decisions on obliging a foreigner to return have been issued, and consultations on such entries”, containing the following provisions:
Pursuant to Article 347a of the Act of 12 December 2013 on foreigners, it is specified that the Commander-in-Chief of the Border Guard enters the data of a foreigner in the SIS for the purposes referred to in Article 3 paragraph 1 of Regulation No. 2018/1860, in the event that:
the commander of the Border Guard unit or the commander of a Border Guard post issued a decision obliging the foreigner to return. Furthermore, in accordance with Article 347g, the KGSG, in the event that a decision obliging a foreigner to return is issued by the minister responsible for internal affairs pursuant to Article 329a paragraph 1 (i.e. a special case of the competence of the minister responsible for the Ministry of Internal Affairs to issue a decision obliging the foreigner to return if there are concerns about the foreigner being involved in terrorist or espionage activities, or suspected of committing one of such crimes), shall, at the foreigner's request, enter the foreigner's data in the SIS.
Moreover, the proposed provision of Article 347c of the Act provides for the obligation to update this entry by the KGSG in a number of circumstances related to the procedure for issuing a decision on obliging a foreigner to return, due to the fact that the non-finality of an administrative decision does not create a fundamentally enforceable and compulsory obligation for the addressee.
Updating the foreigner’s data entry in SIS applies to circumstances in which:
- an appeal was filed against the decision on obliging the foreigner to return, which is not subject to immediate execution (and there is no case specified in art. 315 sec. 5 of the Act of 12 December 2013 on foreigners or the decision was not made immediately enforceable by the authority pursuant to art. 108 sec. 1 of the Act of 14 June 1960 - Code of Administrative Procedure), and therefore the date of voluntary departure was not changed,
- the appeal body upheld the decision on the return obligation in whole or in part,
- the deadline was extended at the request of the foreigner (Article 316 paragraph 2 of the Act, or Article 138 § 1 item 2 of the Code of Administrative Procedure),
- a decision was issued to suspend the execution of the decision obliging the foreigner to return by the appealing authority, or the Provincial Administrative Court, the Supreme Administrative Court, at least Article 61 § 6 of the Provincial Administrative Court.
- the foreigner's obligation to return is not enforceable under Article 330, paragraph 1 of the Act,
- the decision on the obligation was annulled or declared invalid (second instance or Provincial Administrative Court, Supreme Administrative Court), i.e. the proper application of Article 3 (paragraphs 1, 4, 5) of Regulation No. 2018/1860 was ensured.
The proposal does not, however, include any changes to the additional inclusion in SIS records of entries relating to foreigners waiting in detention centres for removal, or those receiving an immediately enforceable obligation to return at the external border of a Member State.
We will provide further details on the proposed changes introducing the full implementation of Regulation 2018/1860 PEiR in subsequent materials.
source: https://www.sejm.gov.pl/sejm9.nsf/druk.xsp?nr=2865
This article is for informational purposes only and does not constitute legal advice.
Legal status as of February 3, 2023
