The continuation of Polish Deal fixes – expanded scope of the middle-class relief

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

The new regulations are also intended to improve other existing provisions regarding foreigners. The goal of the amendments is to optimise procedures and reduce the duration of proceedings.

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

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

• possession by the foreigner of a stable and regular source of income sufficient to cover the costs of living for themselves and their dependants (currently Art. 114(1)(1)(b) of the Act on Foreigners);
• possession by the foreigner of secured accommodation on the territory of the Republic of Poland (currently Art. 114(1)(2) of the Act on Foreigners).

At the same time, the existing requirement that the foreigner’s remuneration cannot 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 the type of legal relationship forming the basis for employment, including part-time work.

This amendment will also introduce a new provision, Art. 114(4b) of the Act on Foreigners, which will address cases 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 for granting the permit will be considered met if the sum of the remunerations indicated in Annex 1 to the application for the temporary residence and work permit is not lower than the minimum wage.

Additionally, a new provision, Art. 114(4a) of the Act on Foreigners, will be introduced, according to which the requirement for a foreigner to have health insurance under the provisions of the Act of 27 August 2004 on publicly funded healthcare services (Journal of Laws 2021, item 1285 as amended) will be deemed fulfilled if the foreigner holds health insurance in connection with performing the work constituting the basis for applying for the permit. This provision will enable consideration of situations where the foreigner’s work results in a compulsory entitlement to health insurance pursuant to Art. 66(1) of the aforementioned Act.

In Art. 119 of the Act on Foreigners, two new circumstances will be introduced under which it will not be necessary to obtain a new temporary residence and work permit or its modification. Specifically, these will be changes in the job title while maintaining the scope of duties, and an increase in working hours with a proportional increase in remuneration.

The amending Act also introduces, responding to practical demands, significant changes in the procedure for changing a temporary residence and work permit. Currently, the change may include the change of the user employer or changes in work conditions specified in the permit under Art. 118(1)(2–5) of the Act on Foreigners. The upcoming change will include also the change of the entity assigning the work, and the foreigner will be exempted from the obligation to hold a work permit regulated by separate provisions.

The amending Act will also introduce a new provision, Art. 117b of the Act on Foreigners, providing a legal basis for the voivode to prioritise cases of granting temporary residence and work permits where the entity assigning the work is an entrepreneur conducting activity of strategic importance to the national economy, included in a list established by regulation of the minister responsible for the economy (currently Minister of Development and Technology) pursuant to Art. 88cb of the Act of 20 April 2004 on employment promotion and labour market institutions (Journal of Laws 2021, item 1100 as amended). The application of Art. 117b will depend on the issuance of the relevant regulation (which is optional).

Other procedural changes

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

This special procedure means that if, on the date of its entry into force, the proceeding is still ongoing (Art. 114 or Art. 126 of the Act on Foreigners), it should be concluded by granting a permit valid for 2 years from the date of the decision, except in cases where:

• the foreigner’s data must be entered in the register of foreigners whose stay on Polish territory is undesirable;
• the foreigner’s data is recorded in the Schengen Information System for refusal of entry;
• the granting of the permit conflicts with national defence or security, public order protection, or obligations arising from ratified international agreements binding on Poland.

A permit granted under this special procedure will not specify the entity assigning the work, the user employer (in the case of temporary work), or the work conditions as in ordinary permits. The details of the work assignment will be supplemented by a declaration from the entity assigning the work regarding the entrusted work (Art. 9(1)(3) of the amending Act).

According to the government website, this declaration must be submitted using an official form, the template of which will be defined in a regulation by the Minister of the Interior and Administration issued pursuant to Art. 9(23) of the amending Act.

In proceedings on granting temporary residence permits (and in proceedings on changing such permits), the voivode’s deadline to handle the case will be 60 days (new Art. 112a(1) of the Act on Foreigners), counted from the last of specified events (new Art. 112a(2) of the Act). The deadline for the Head of the Office for Foreigners in appeal proceedings will be 90 days from the day the appeal is forwarded, or from the day of supplementing formal deficiencies if the appeal does not meet legal requirements (new Arts. 112a(4), 112a(5), 210(4), 210(5) and 223 of the Act).

The amending Act also explicitly enables the exchange of information between the voivode or the Head of the Office for Foreigners and authorities contacted for information about whether a foreigner’s entry or stay on Polish territory may pose a threat to national defence, security, or public order (e.g., regional police commander, border guard commander, Head of the Internal Security Agency) via electronic communication means, facilitating document flow and expediting proceedings.

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

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