Legalisation of employment and stay of foreigners in Poland from 1 May 2014
Temporary stay up to 3 years, application for a stay permit up to the day before the visa expires, and a single permit for stay and work: These are just a few of the advantages introduced by the new Foreigners Act.
The new Foreigners Act (dated 12 December 2013) enters into force in Poland on 1 May 2014, replacing the current regulations and amending certain other acts, including the Act on Promotion of Employment and Labour Market Institutions of 20 April 2004. The changes will make it easier for foreigners to legalise their work and stay in Poland.
The new Foreigners Act introduces the “temporary stay permit” and “permanent stay permit” in place of the existing “residence permit for a definite period” and “settlement permit” respectively. But the changes are not limited to names only.
Most significantly, the maximum period for which a foreigner may be granted a permit to stay in Poland temporarily has been extended from two to three years, while maintaining the existing ability to extend the permit for further periods.
The act also changes the deadlines for filing an application for issuance of a temporary stay permit. Previously a foreigner present in Poland on the basis of a visa or stay permit had to file an application for an initial or subsequent stay permit at least 45 days before the expiration of the visa or the current permit, as the case might be. If this deadline were not met and the province governor did not grant the stay permit before the expiration of the visa or existing permit, then the foreigner was required without exception to leave Poland. From 1 May 2014, a foreigner may file an application for a temporary stay permit at any time when he or she is legally staying in Poland on the basis of a visa or stay permit, even the day before it expires. This is sufficient to allow the foreigner to stay in Poland until issuance of the permit applied for.
Alongside the permit for residence for a definite period (now known as a temporary stay) for purposes of working in a highly skilled profession, which was introduced earlier, the Foreigners Act of 12 December 2013 provides for a new, separate type of stay permit, known as a “stay and work permit.” This permit will authorise a foreigner both to work in Poland (including at jobs not requiring special qualifications) and also to stay in Poland for this purpose, thus eliminating the obligation to obtain a separate work permit. The foreigner alone will be a party to the proceeding seeking issuance of a stay and work permit. The stay and work permit will be applicable in all cases in which work is performed in Poland by foreigners, except for situations where the work for the entire period is to be performed as part of secondment to Poland by a foreign employer. Foreigners seconded to work in Poland will still have to have both a work permit and a document permitting them to stay in Poland, i.e. a visa or separate temporary stay permit (unless during the initial period of 90 days within 6 successive months they may work in Poland without a visa).
Notwithstanding the availability of the stay and work permit, foreigners and their employers will still be able to use the existing solutions involving obtaining a separate work permit (types A–E) pursuant to the Act on Promotion of Employment and Labour Market Institutions and, based on the work permit, a separate stay document in the form of a visa (typically national) or a temporary stay permit. Selection of the best solution in the specific situation will therefore depend mostly on the timing of the commencement of work in Poland by the foreigner (as obtaining a stay and work permit will take more time and formalities than obtaining a work permit) as well as the location where the foreigner is staying at the time of filing the application for issuance of the permit or visa (a stay permit can be obtained only in Poland).
The new Foreigners Act also introduces significant changes in the procedure to be followed in deporting foreigners from Poland (if it is found, for example, that a foreigner is working or staying in Poland without the required permit or visa). The separate decisions that have been issued in such cases, on deportation of the foreigner from Polish territory and ordering the foreigner to leave Poland, have been replaced by a single decision ordering the foreigner to return home. The only body authorised to issue a decision on deportation of a foreign from Polish territory will be the Border Guard, which should significantly unify the practice in these cases. Even more important, where previously the deportation decision became enforceable at the latest upon a ruling by the competent authority of the second instance within the system of administrative review, from 1 May 2014 seeking review by the province administrative court of the decision ordering the foreign to return home, together with an application for a stay of enforcement, will also result in extension by operation of law of the deadline for the foreigner to voluntarily leave the country or for compulsory enforcement of the decision, through the date of issuance by the province administrative court of a ruling on the application for a stay of enforcement.
Magdalena Świtajska, Employment Law Practice, Wardyński & Partners