Easier employment for foreigners in Poland – amendment to the Foreigners Act

On 29 January 2022, the amended Act on Foreigners came into force. The changes aim to streamline procedures concerning the granting of temporary residence permits to foreigners on the territory of the Republic of Poland. In particular, this concerns temporary residence and work permits, which are the most commonly issued type of temporary residence permits in Poland.

The new regulations also seek to improve other existing solutions regarding foreigners. The goal of the amendments is to optimise procedures and shorten the duration of proceedings.

Simplifications concerning the granting of temporary residence and work permits to foreigners (the below announced changes have already come into effect)

As of the date the amendment entered into force, the requirements for granting a temporary residence and work permit will no longer include:

• the foreigner possessing a stable and regular source of income sufficient to cover the costs of maintenance for themselves and their family members dependent on them (current Art. 114(1)(1)(b) of the Act on Foreigners);
• the foreigner having secured accommodation on the territory of the Republic of Poland (current Art. 114(1)(2) of the Act on Foreigners).

At the same time, the existing requirement that the foreigner’s remuneration must not be lower than the minimum wage (Art. 114(1)(5) of the Act on Foreigners) will be amended. Following this change, the foreigner’s monthly remuneration must not be lower than the minimum wage regardless of the working time and type of legal relationship underpinning the foreigner’s employment, including cases where the foreigner works part-time.
This change will also introduce a new provision, Art. 114(4b) of the Act on Foreigners, which addresses situations where a foreigner applies for a temporary residence and work permit due to performing work for more than one entity assigning the work. In such cases, the requirement will be deemed fulfilled if the sum of the remunerations indicated in the annexes to the application for a temporary residence and work permit is not less than the amount of the minimum wage.

Furthermore, a new provision, Art. 114(4a) of the Act on Foreigners, will be introduced, stipulating that the requirement for the foreigner to have health insurance, as defined by the Act of 27 August 2004 on healthcare services financed from public funds (Journal of Laws 2021, item 1285, as amended), shall also be considered fulfilled if the foreigner holds health insurance arising from employment forming the basis for the temporary residence and work permit application. This provision will thus cover cases where the foreigner’s employment mandates health insurance coverage pursuant to Art. 66(1) of the 2004 Act on healthcare services financed from public funds.

Article 119 of the Act on Foreigners will be amended by adding two new circumstances which will not require obtaining a new temporary residence and work permit or its amendment. These are: a change in the job title held by the foreigner while maintaining the scope of duties, and an increase in working hours with a proportional increase in remuneration.

The amending Act will also introduce significant changes to the procedure for changing a temporary residence and work permit. Under current law, changes to the permit may cover a change of the user employer or changes in the conditions of work performance defined in the permit (Art. 118(1)(2–5) of the Act on Foreigners). The upcoming amendment will additionally allow for changes concerning the entity assigning the work and will exempt foreigners from the obligation to hold a separate work permit, where applicable.

Moreover, the amending Act will introduce a new legal basis in Art. 117b of the Act on Foreigners for voivodes to prioritise processing applications for temporary residence and work permits where the entity assigning the work is a business operating in sectors strategically important to the national economy. Such businesses will be listed by a regulation issued by the minister responsible for the economy (currently the Minister of Development and Technology) pursuant to Art. 88cb of the Act on Employment Promotion and Labour Market Institutions (Journal of Laws 2021, item 1100, as amended). The application of Art. 117b will depend on whether this regulation is issued (its issuance is optional).

Other procedural changes

A special procedure will be introduced for concluding proceedings on granting temporary residence and work permits initiated before 1 January 2021.

This special procedure means that if, on the day the amendment comes into force, proceedings on granting a temporary residence and work permit (Art. 114 or Art. 126 of the Act on Foreigners) are still ongoing, the proceedings should conclude with granting a permit for 2 years from the date of decision issuance, except in cases where:

• the foreigner will be entered into the register of foreigners whose stay in Poland is undesirable;
• the foreigner’s data will be in the Schengen Information System for entry refusal;
• defence, state security, public order, or obligations arising from ratified international agreements binding Poland oppose the granting of the permit.

The temporary residence permit granted under this special procedure will not specify the entity assigning the work or the user employer (in the case of temporary work) nor the conditions of work performance as is typical for permits granted under standard conditions. The details of the entity (or entities) assigning the work and the terms will be supplemented by a declaration from the entity assigning the work (Art. 9(1)(3) of the amending Act).
According to government information, such a declaration will need to be submitted on an official form following a template to be specified in a regulation of the Minister of the Interior and Administration issued under Art. 9(23) of the amending Act.

In cases of proceedings concerning the granting or changing of temporary residence and work permits, the deadline for the voivode to resolve the case will be 60 days (new Art. 112a(1) of the Act on Foreigners), counted from the last of the following events (new Art. 112a(2) of the Act). The deadline for the Head of the Office for Foreigners to handle appeals will be 90 days from receipt of the appeal, or, if the appeal does not meet legal formal requirements, from the date of completion of deficiencies (new Arts. 112a(4), 112a(5), 210(4), 210(5), and 223 of the Act).

The amending Act will also explicitly authorise the exchange of information electronically between the voivode or Head of the Office for Foreigners and other authorities (such as the provincial police commander, border guard commander, and the Head of the Internal Security Agency) regarding whether a foreigner’s entry and stay in Poland may pose a threat to defence, security, or public order. This will facilitate document circulation and improve the efficiency of proceedings.

A full list of changes can be found on the government website in the Office for Foreigners’ news section:

Changes in the law concerning foreigners – Office for Foreigners – Gov.pl Portal (www.gov.pl)