Go to:
• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

Interestingly enough, some authors claim that the lack of public or political debates on migration issues is a positive phenomenon in the sense that the status quo is rather beneficial for all the actors involved in the shaping of migration policy because the public discourse on immigration issues usually results in the radicalisation of attitudes towards others, and to growing xenophobia.
[I. Korys, Poland: Dilemmas of a Sending and Receiving Country, in: International Organisation for Migration, Migration Trends in Selected Applicant Countries, Vol. 3, Vienna 2004, p. 50]. It seems, however, that the lack of such discourse on the present stage will only result in 'radicalisation of attitudes' on intensified scale in later stages.

Art. 60.4 AA states that the application for residence permit includes: the alien’s personal data as well as personal data of children covered by the application and other persons covered by the alien’s travel document with respect to issuance of residence permit; place of intended residence in Poland; personal data of the alien’s family members residing in Poland including the level of consanguinity; information on visits and stays abroad within previous five years, as well as on previous stays in Poland; and indication of maintenance means. Under Art. 60.5 AA the applicant is obliged to justify the application, provide valid travel document, as well as to attach to the application photos of persons covered by the application and all relevant documents confirming data included in the application as well as circumstances on which the application is based. The additional requirement, which applies also in context of family reunification, demands providing information on legal title to the current or intended place of housing as well as documents confirming the costs of housing (Art. 60.5a AA).

Practically the process of submitting the residence permit application in order to reunite is easier when the family members are already on the territory of Poland. Otherwise the sponsor who is the applicant may face difficulties providing some of the required documents (e.g. copies of travel documents; technically specified photos etc.). It happens that the relevant officials informally suggest that it would be easier to apply for reunification when family members concerned have already legally entered the territory of Poland.

According to the case-law of the Supreme Administrative Court regarding public security clauses in law on aliens, the concrete premises justifying the real danger caused by an alien must be identified (Judgement No. V SA 155/2002 of 22 October 2002, unpublished; all references to judgements quoted from J. Chlebny, Komentarz do art. 57 [Commentary on Art. 57] in: J. Chlebny (ed.), Prawo o cudzoziemcach. Komentarz [Law on Aliens. A Commentary], Warszawa 2006, p.133). Also, the Supreme Administrative Court stated for instance that not every breach of law constitutes the danger for public order (Judgement No. V SA 3480/02 of 12 November 2003, unpublished); yet, residence of an alien who had been drink-driving was identified as constituting the danger to public order (Judgement No. V SA 3488/02 of 30 July 2003, unpublished).

Moreover, it should be noted that a negative decision on granting residence permit (including that granted in order to reunite) is also issued if the alien concerned is listed in the register of aliens undesirable within the territory of Poland (Art. 57.1.2 AA). Also, the aliens listed in the register are not entitled to enter the territory of Poland. Thus, aliens listed in the register are not eligible to reunite. The data of an alien are temporarily placed in the register of aliens undesirable within the territory of Poland when he or she is issued with an expulsion decision, as well as a decision obliging to leave voluntarily (an alien may be issued with an expulsion decision or in some cases alternatively with a decision obliging an alien to leave the territory of Poland voluntarily; however, also an alien issued with an expulsion decision is obliged to leave the territory of Poland on his or her own account within the time limit set in the decision; thus, an alien is generally forcibly escorted to the border by competent authorities only if he or she does not comply with the obligation to leave). If an alien complies with the decision obliging to leave voluntarily the data is placed in the register for one year. If an alien complies with an expulsion decision the data is placed in the register for three years. And if an alien is forcibly expelled (to be precise, the AA speaks more generally of a situation when the costs of expulsion are covered by the authorities) the data is placed in the register for 5 years (Art. 128.3 AA).

In the above context, the premises for issuing the expulsion decision should be considered as they limit the eligibility to reunite. An expulsion decision is issued if one of the following premises provided in Art. 88 AA occurs: a) illegal residence; b) illegal employment or self-employment; c) lack of sufficient financial means necessary for maintenance while in Poland; d) the alien’s data are in the register of aliens undesirable within the territory of Poland; e) the alien’s further stay would constitute a threat to state’s defence or security or the protection of public security and order or would endanger the interest of Poland; f) illegal entry or attempt to enter illegally; g) non-compliance with a decision obliging an alien to leave the territory of Poland voluntarily; h) non-compliance with fiscal obligations towards Poland; i) completion of an imprisonment sentence for intentional criminal offence or fiscal offence; j) a final sentence of imprisonment if there are grounds for the transfer abroad procedure. Also, under Art. 89 AA an expulsion decision must not be issued, nor executed if previously issued, if, among others, an alien is a spouse of a Polish national or of an alien holding a settlement permit or a long-term EC resident permit and his or her further stay in Poland does not endanger state’s defence or security or the protection of public security and order, save the cases in which the marriage was aimed at avoiding the expulsion.

As far as the expulsion of the EU citizens and their non-EU family members, the 2006 Act modifies the clause by grading the danger caused and issuing the expulsion decision is not obligatory. Firstly, the EU citizen or his or her non-EU family member who does not enjoy the right to permanent residence may be issued with the expulsion decision if he or she endangers state’s defence or security or protection of public security and order or public health (Art. 66.1.1 of the 2006 Act). Secondly, the EU citizen or his or her non-EU family member who enjoys the right to permanent residence (i.e. resides more than five years in Poland) may be issued with the expulsion decision if he or she seriously endangers state’s defence or security or protection of public security and order (Art. 67 of the 2006 Act). Finally, the EU citizen who resides more than 10 years in Poland may be issued with the expulsion decision if he or she endangers state’s defence or security or protection of public security and order by endangering peace, humanity, independence or defence of Poland or by terrorist activity (Art. 68 of the 2006 Act). Thus, the UE citizens and their non-EU family members are privileged in this respect in comparison with other aliens.

The standard of Art. 12.2 of the Directive is met as there is no waiting period for a refugee wishing to become sponsor.

It should be noted that entry visas issued on the basis of the prior grant of residence permit are not exempted from consular fees. The consular fees including fees for issuing visas are regulated in Regulation of the Minister of Foreign Affairs on Consular Fees of 1 August 2003 (Rozporzadzenie w sprawie oplat konsularnych, Journal of Laws 2003, No. 156, item 1530 as amended). The Regulation provides, among others, exemption from consular fees for issuing visas for family members of the EU citizens, which was recently introduced by the Regulation of the Minister of Foreign Affairs Amending the Regulation on Consular Fees of 31 March 2006 (Rozporzadzenie zmieniające rozporządzenie w sprawie opłat konsularnych, Journal of Laws 2006, No. 63, item 444). It seems that failing to provide exemptions for issuing entry visas in context of family reunification is not in conformity with the Directive obligation to grant every facility for obtaining the required visa.

Access to self-employment of admitted family members, as well as - among other categories - aliens granted the settlement permit, the long-term EC resident permit and refugee status, has been made equal with that enjoyed by Polish nationals (Art. 13.2; the Act on Freedom of Self-Employment of 2 July 2004; Ustawa o swobodzie gospodarczej, Journal of Laws 2004, No. 173, item 1807 as amended). Again, the admitted family members enjoy even more favourable treatment than the sponsor if the latter resides under residence permit.

Notwithstanding the standard of the Directive requiring the equal treatment in access to employment and self-employment is met.

Also, the family member may apply for the residence permit on regular basis for reasons other than family reunification if only he or she meets the requirements and wishes so.

The residence permit is to be refused or withdrawn if marriage was contracted for the sole purpose to be granted the residence permit (Art. 57.1.4 and Art. 58.1.2 AA). According to Art. 55.1, the relevant authority competent for granting the residence permit is to established whether the marriage is of convenience if circumstances demonstrate that: a) one of the spouses has derived material benefit from his or her consent to contact marriage if this is not a consequence of an established custom in the state or a social group concerned; b) spouses neglect their martial duties based on law; c) spouses do not live in one household; d) spouses had met never before getting married; e) spouses do not speak a language understandable for both; f) spouses are not unanimous in presenting their personal data and other important circumstances which regard them; g) one or both spouses have previously contacted marriages of convenience. The relevant authority pursues the evidence procedure in accordance with relevant provisions of the 1960 Code of Administration Procedure save the standards of Art. 79 of the Code, which ensure rights to be informed of and involved in the evidence procedure.

• correct transposition
• no transposition
• violation of the Directive
• unclear