In the era of the coronavirus epidemic, the lives of both citizens and foreigners residing in the territory of the Republic of Poland encounter various difficulties. One of them is the obligation to submit to quarantine by persons crossing the Polish border pursuant to § 2 (2) of the Regulation of the Council of Ministers of 29 May 2020 on establishing specific restrictions, orders and bans in connection with the occurrence of an epidemic. Failure to comply with the quarantine obligation may result in a fine of up to PLN 30,000 imposed by the Poviat Sanitary Inspectorate. According to our practice, the consequences of failure to comply with the abovementioned however, the obligations are far more extensive for foreigners residing in the territory of the Republic of Poland. Recently, the Border Guard began to issue to foreigners breaking quarantine decisions obliging the foreigner to return on the basis of art. 302 paragraph 1 point 9 of the Act on foreigners, the consequence of which is also the expulsion of a given person from Poland. Article 302 para. 1 point 9 of the Act on foreigners provides that: “The decision to oblige a foreigner to return is issued to a foreigner when (…) it is required by reasons of national defense or security or the protection of public safety and order or the interest of the Republic of Poland” In the opinion of the law office, such severe consequences for foreigners residing in the country are unjustified and are not reflected in the content of art. 302 of the Act on foreigners. It should be noted that this is a violation of the administrative law obligation, which in essence was not defined by the legislator as socially harmful enough to be described as a crime or offense. This means that, in accordance with the administrative authorities’ principle of proportionality, no justification can be found for applying to a foreigner the strictest sanction in the form of expulsion from the country.
The available jurisprudence emphasizes that the use of such a repressive measure should be associated with the threat that a given person poses to public security and order, related e.g. to the committing or the risk of committing crimes by a foreigner in the future. As follows from the judgment of the Provincial Administrative Court in Warsaw of March 23, 2017 with reference number IV SA / Wa 3278/16: “The task of the administration body in such cases is to examine whether, in connection with the crime committed, the foreigner will pose a threat to public order in the future.” This means that one-off violations, including violation of the quarantine obligation, cannot be automatically qualified as a threat to public order. The authority is obliged to assess how the foreigner’s identified offenses affect his / her future relationship to the legal order, and thus what threatens his / her stay. The quarantine obligation and its non-compliance is a one-off violation, and making an assessment from it that in the future a given person will not comply with the legal order and thus constitutes a threat, constitutes a violation of the principles of correct reasoning.
It should be mentioned that, as a rule, it is difficult to imagine the case that a single person would pose a threat to national security due to non-compliance with quarantine. Even taking into account the current epidemiological threat, it cannot be concluded that the behavior of a single person in the form of non-compliance with quarantine has such far-reaching effect, especially in a situation in which the Border Guard uses such a measure, not for the person diagnosed with coronavirus infection but what, to which the quarantine obligation arose as a result of crossing the Polish borders. If you decide to oblige you to return, remember the 14-day time limit for filing an appeal to the Head of the Office for Foreigners (via the given commandant of the branch or Border Guard facility). An obstacle is the fact that due to the legal basis (i.e. Article 302 (1) (9) of the Act on foreigners) the said decision does not indicate to the foreigner the period for voluntarily leaving the country’s borders, which means that it can be immediately enforceable. The consequence of the subject matter becoming final on the basis of art. 319 point 4 of the Act on foreigners is also forbidden to re-enter the territory of the Republic of Poland and other countries of the Schengen area for a period of 5 years. Therefore, in the present case it is worth using the services of a professional representative.