Amendments to the Foreigners Act – HFHR comments

In response to an invitation from the Ministry of the Interior and Administration to take part in public consultations, the HFHR prepared a number of comments to the draft law on amending the Foreigners Act and certain other acts (draft law of 31 August 2016).

In its comments presented to the Ministry, the HFHR has pointed out that it is unreasonable to require the knowledge of Polish as one of the bases for obtaining a permanent residence permit in Poland. “The knowledge of Polish is currently required of individuals who apply for Polish citizenship. Introducing such a requirement for individuals applying for a permanent residence permit is unreasonable, especially that Poland does not offer any integration programmes to the majority of foreigners which would include Polish classes,” says Marta Górczyńska, HFHR’s lawyer.

Another unfavourable change is the possibility of placing a foreigner in a guarded centre for a period which is one month longer than the maximum permissible detention period set out in the European Union law. “Introducing such a solution is in violation of the Return Directive which reads that the maximum permissible period of a foreigner’s stay in a guarded centre is 18 months. The Polish legislator does not have the freedom to change that limit in domestic law. The European Court of Justice shares that view; in one of its judgements, the ECJ emphasised that the directive was to guarantee the maximum period for application of detention measures that would be shared by all member states,” adds Marta Górczyńska.

In addition to comments to the proposed draft law, the HFHR also pointed out to several other issues that should be considered during the ongoing legislative works. The Foundation indicated, among other things, that it was necessary to abolish regulations that allow for departing from the requirement to present a rationale for a compulsory return decision for security reasons. It was also emphasised that there should be guarantees for foreigners who were victims of domestic violence, in keeping with the Convention on Preventing and Combating Violence against Women and Domestic Violence; foreigners placed in guarded centres should also have the ability to access their case files. In addition, the HFHR again raised the issue of introducing an absolute ban on children detention as part of refugee- and return procedures. “We have been requesting for years that children should not be placed in guarded centres for foreigners, and that request remains valid. The European Court of Human Rights has stressed on numerous occasions that depriving children of freedom, even for a short time, may have a negative impact on their mental-, physical and emotional development. Because of their oppressive nature and prison-like regime, guarded centres are certainly not a place to place children,” emphasises Marta Górczyńska.