Return obligation and criminal proceedings — how the procedure actually works

Why the debate came back

On the evening of Saturday 1 August 2026, in the Muchobór housing estate in Wrocław, a 30-year-old Polish citizen was attacked with a knife and taken to hospital in a life-threatening condition. Immediately after the incident the police detained an 18-year-old Ukrainian citizen, suspected of attempted homicide. The Consulate General of Ukraine in Wrocław condemned the attack and stated that the perpetrator should be held liable in accordance with the law of the Republic of Poland.

A suspect is covered by the presumption of innocence — until a final court judgment, that person is not regarded as guilty (art. 42 ust. 3 Konstytucji RP). This article does not settle the political dispute that followed the incident. It describes how the return procedure works under the provisions in force — because that question returns with every such case.

A return obligation is an administrative decision, not part of a criminal sentence

A decision obliging a foreigner to return is issued by the commander of a Border Guard unit or the commander of a Border Guard post — of its own motion, where the authority itself finds that a ground exists, or on a request from, among others, the voivode (wojewoda), a voivodship or district Police commander, the Head of the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego) or an authority of the National Revenue Administration (art. 310 ust. 1 ustawy o cudzoziemcach). It is not issued by a criminal court and it is not a penalty.

The Act lists sixteen grounds for issuing such a decision (art. 302 ust. 1). Two of them matter in cases with a criminal element. Point 9 — where this is required by considerations of national defence or state security, or the protection of public safety and public order, or the interest of the Republic of Poland. Point 11 — where the foreigner has been convicted in Poland by a final judgment to an enforceable custodial sentence and there are grounds to conduct proceedings on transferring the person abroad in order to serve that sentence.

It is worth noting what is not on that list: detention alone, or the mere fact that charges have been brought, is not a separate ground. The authority may base its decision on point 9, but it must demonstrate a specific threat to public safety or public order. Its assessment is subject to review in appeal proceedings and then to review by the administrative court.

Why a detained suspect does not leave „immediately”

Even once issued, a decision does not mean immediate departure. The Act expressly identifies situations in which a return decision is not enforced — among others where a preventive measure in the form of a ban on leaving the country has been imposed on the foreigner in Poland (art. 330 ust. 1 pkt 7), or where proceedings are pending on granting the person international protection, or a permit to stay on humanitarian grounds or tolerated stay (art. 330 ust. 1 pkt 1–3).

Return proceedings are not initiated at all, and pending proceedings are discontinued, where the foreigner is being surrendered to a third country on a request for the extradition of a wanted person, or to another European Union state under a European arrest warrant — in order to conduct criminal proceedings against that person or to enforce a sentence (art. 303 ust. 1 pkt 14 i 15).

In practice, a person held in pre-trial detention or serving a sentence remains at the disposal of the court and the prosecution authorities. Removal before the criminal case ends would mean giving up on trying the act in Poland and on enforcing the sentence imposed.

Voluntary departure period, immediate enforcement and forced return

As a rule, the decision sets a voluntary departure period: from 8 to 30 days, counted from the day it is served (art. 315 ust. 1). The authority may extend it, once and on the foreigner's request, where this is justified by, among others, an exceptional personal situation — in total for no longer than one year (art. 316).

No voluntary departure period is set in two cases: where there is a likelihood that the foreigner will abscond, or where this is required by considerations of national defence or state security, or the protection of public safety and public order (art. 315 ust. 2). A decision issued on that second ground is immediately enforceable (art. 315 ust. 5).

Forced enforcement consists in escorting the foreigner to the border or to an airport or seaport of the country of return, and it is carried out by the Border Guard (art. 329 ust. 1–4). A separate, strictest procedure applies to terrorist and espionage threats: the decision is then issued by the minister responsible for internal affairs on a request from the Commander-in-Chief of the Police, the Head of the Internal Security Agency or the Head of the Military Counterintelligence Service (Służba Kontrwywiadu Wojskowego), and the decision is subject to immediate forced enforcement (art. 329a).

Entry ban — from six months to ten years

A return decision also rules on a ban on re-entering the territory of the Republic of Poland and the other states of the Schengen area, and sets the length of that ban (art. 318 ust. 1). The length depends on which ground the decision was based on (art. 319 ust. 1).

From 6 months to 3 years — for the grounds in art. 302 ust. 1 pkt 1–3, 6–8, 10, 12, 13, 15 lub 16. From one year to 3 years — for work without the required permit or declaration, or business activity conducted contrary to the regulations (pkt 4 lub 5). From 3 to 5 years — for pkt 11 lub 14. From 5 to 10 years — for considerations of national defence, state security or public order (pkt 9) and under art. 329a ust. 1.

If the foreigner does not pay the amounts due for the costs of issuing and enforcing the decision before the ban expires, the ban is extended by operation of law until the day of payment — but for no longer than 5 years (art. 319 ust. 2). The ban may be lifted on the foreigner's request, by a decision of the authority that issued the first-instance decision (art. 320).

Appeal: 7 days, not 14

This is the most frequently confused element of the whole procedure. The higher-instance authority over the commander of a Border Guard unit and the commander of a Border Guard post in cases concerning a return obligation, an extension of the voluntary departure period and the lifting of a re-entry ban is the Commander-in-Chief of the Border Guard (Komendant Główny Straży Granicznej), and the appeal must be lodged within 7 days of the day the decision is served (art. 321).

That is a shorter time limit than the standard 14 days under the Code of Administrative Procedure (Kodeks postępowania administracyjnego), which applies to voivode decisions in residence permit cases. Confusing the two ends in losing the right of appeal. Once the administrative route is exhausted, a complaint may be brought to the voivodship administrative court (wojewódzki sąd administracyjny); a cassation complaint to the Supreme Administrative Court (Naczelny Sąd Administracyjny) must be drafted by an adwokat or radca prawny (art. 175 § 1 p.p.s.a.).

What changed for Ukrainian citizens on 5 March 2026

The Act of 23 January 2026 on phasing out the arrangements arising from the Act on assistance to citizens of Ukraine in connection with the armed conflict on the territory of that state (Dz. U. poz. 203) entered into force on 5 March 2026. It repealed art. 42b of the special act — the provision that gave the Border Guard authority an optional basis not to initiate, or to discontinue, return proceedings against a Ukrainian citizen who was not covered by considerations of national defence, state security, the protection of public safety and public order, or an interest of the Republic of Poland arguing for the obligation.

Also repealed were art. 42 ust. 6 i 7 of the special act, which extended until 4 March 2026 the period for performing the obligation to leave the territory of the Republic of Poland and the voluntary departure period set in a return decision issued to a Ukrainian citizen.

What was maintained, until 4 March 2027, are the extensions of periods of stay under national visas and of the validity of such visas, of the validity of temporary residence permits, and of the validity of residence cards, Polish identity documents for foreigners and „tolerated stay permit” documents issued to Ukrainian citizens (art. 42 ust. 3a, 5a i 8 of the special act).

The practical conclusion: since 5 March 2026 Ukrainian citizens are subject to the return procedure under the general rules. The earlier safety valve based on citizenship alone no longer operates.

The scale in Border Guard data

According to the summary of the National Headquarters of the Border Guard (Komenda Główna Straży Granicznej) for 2025, over 9 thousand foreigners complied with return decisions, including over 2 thousand under forced enforcement. In the same year the Border Guard carried out checks on the legality of stay in respect of almost 81 thousand foreigners and checks on the legality of employment in respect of 64 thousand, and around 26 thousand people were refused entry.

The figure of „over 10 thousand deported in 2025” appears in public debate. It is not the same as the data of the National Headquarters of the Border Guard. The number of decisions issued and the number of decisions carried out are two different statistical categories — before you rely on a particular figure, check which of them it describes.