Just recently, while writing a piece about the residency status of British citizens residing in Poland after Brexit, I came across a press release from the Office for Foreigners outlining amendments to the Act on Foreigners in Poland.
The Act of 17 December, 2021, which amended the Act on Foreigners in Poland, came into force on 29 January, 2022.
The changes primarily focused on the granting of temporary residence permits and work permits.
Therefore, I’d like to summarise the main amendments which affect the legalisation of the stay of foreigners in Poland, with particular emphasis on persons who are employed and those seeking temporary residence.
Requirements for granting temporary residence permit and work permits that have been abolished
On 29 January, 2022, the following requirements for granting a temporary residence permit and a work permit ceased to apply:
- the requirement for a foreigner to have a source of stable and regular income sufficient to cover his/her subsistence expenses and the subsistence expenses of dependent family members (current Article 114 section 1 item 1(b) of the Act on Foreigners);
- the obligation for a foreigner to have a place of residence in Poland (current Article 114 section 2 of the Act on Foreigners).
Key amendments to the Act on Foreigners in Poland concerning requirements for granting temporary residence and work permits
Key amendments to the Act on Foreigners in Poland regarding conditions for obtaining temporary residence and work permit as follows:
- Article 114 section 1 item 5 – The stipulation that a foreigner’s remuneration can’t be lower than the minimum wage was amended. A foreigner’s monthly remuneration cannot be lower than the minimum wage, irrespective of working hours or the kind of legal relationship which constitutes the basis for the foreigner’s employment. Therefore, this amendment also applies to cases where a foreigner has a part-time job
- Article 119 – This particular article has been amended by introducing two new circumstances. Namely, these circumstances refer to a change of the name of the position in which the foreigner works, while retaining the scope of his/her duties and an increase in the working time with a proportional increase in remuneration. A new temporary residence and work permit, or its amendments, is not required under this circumstance.
Act 119 also introduces notable changes concerning the procedure for amending a foreigner’s temporary residence and work permit. Currently, a replacement of this permit may include a change of the user-employer or a change of the conditions for performing work specified in the permit pursuant to Article 118, section 1, items 2-5, of the Act on Foreigners in Poland. Check out section 1 of Article 18 and the relevant items below:
Art. 118 on foreigners
Elements of the decision on granting a temporary residence and work permit
1.The decision on granting a temporary residence and work permit to a foreigner, beyond the period of validity of this permit, indicates:
- the entity entrusting the performance of work, and in the event that the foreigner will be a temporary employee – also the user’s employer;
- the position at which the foreigner is to perform work;
- the lowest remuneration that can be received by a foreigner for a given position;
- working hours;
- type of contract under which the foreigner is to perform work.
The scope of the change allowed under this procedure will also include the change of the entity which employs a foreigner. Furthermore, the foreigner will be granted an exemption from the obligation to possess a work permit specified by the other separate provisions.
New provisions to the Act on Foreigners in Poland concerning requirements for granting temporary residence and work permits
- Article 114 section 4b – The above amendment (article 114, section 1, item 5) shall also be deemed to be fulfilled when the purpose of the foreigner’s stay in Poland is to work for more than one entity. This assumes that the performance of work and the sum of remuneration indicated in the attachments to the application for a permit is not lower than the minimum wage
- Article 114 section 4a – The requirement for a foreigner to possess health insurance according to the Act of 27 August 2004 on health care services financed from public funds (Journal of Laws of 2021, item 1285, as amended) is considered fulfilled if the foreigner has health insurance through employment.
Other key changes to the rules governing the granting of temporary residence permits
- Provisions on granting temporary residence permits for the purpose of family reunion have also been modified. One of the amendments concerns the case of a minor who joins a foreigner living in Poland (Article 159 section 3 items 2-4 of the Act on Foreigners). Such an application for temporary residence shall now be evaluated according to the status on the day of submitting the application for a temporary residence permit. Up until this amendment, the applicant’s status on the day the decision was issued was valid (new provision of Article 159 section 3a of the Act on Foreigners);
- The amending act will change the wording of Article 127(3) of the Act on Foreigners. This act determines one of the requirements for granting a temporary residence permit for the purpose of highly qualified employment with regard to the amount of remuneration that a foreigner should receive. Currently, it cannot be lower than 150% of the average salary in the national economy in the year prior to the conclusion of the agreement between the foreigner and the entity commissioning the work. As a result of the amendment, the amount of remuneration should now correlate to the amount of the average remuneration in the national economy in the year preceding the application for a temporary residence permit.
Improved time limits for handling cases regulated by the Act on Foreigners in Poland
The amending act has made noteworthy changes to the regulation of time limits for handling cases:
- on granting a temporary residence permit (and to amend a temporary residence and work permit);
- on granting a permanent residence permit;
- on granting a residence permit for long-term EU residents.
Regarding the proceedings to grant a temporary residence permit (as well as proceedings to amend a temporary residence and work permit), the Voivode is now obliged to resolve each case within 60 days (new provision of Article 112a section 1 of the Act on Foreigners). The first day of this 60-day period begins from the moment the last of the following obligations is fulfilled (new provision of Article 112a section 2 of the Act on Foreigners):
- submission of an application in person or subsequent personal appearance of the foreigner in the voivodeship Office (excluding cases in which the foreigner is not obliged to appear in person);
- submission of an application without defects or errors;
- submission by the foreigner of documents necessary to confirm the data contained in the application as well as the circumstances justifying the application for a temporary residence permit.
When it comes to granting a permanent residence permit and a residence permit for a long-term EU resident, the time limit for the Voivode to handle each case is now six months (Article 210 section 1 and Article 223 of the Act on Foreigners). The duration of the processing time depends on the requirement of the foreigner to fulfil the same aforementioned obligations which are relevant for granting a temporary residence permit (new provision of Article 210 section 2 of the Act on Foreigners).
As for appeal proceedings, the time limit for the Head of the Office for Foreigners to resolve each of the aforementioned cases is 90 days, beginning from the date of handing over the appeal. If the appeal does not meet the appropriate legal requirements, then the date of the appeal starts from the date the foreigner submits any missing documents (new provision of Article 112a section 4 and 5, Article 210 section 4 and 5 and Article 223 of the Act on Foreigners).
Article 13 of the amending act declares that the new time limits for processing cases shall apply to procedures which are already pending.
Other procedural changes regarding proceedings under the provisions of the Act on Foreigners
Article 7 of the Act on Foreigners in Poland has been amended. Now, a foreigner is able to receive information about the procedure and his or her rights and obligations in a language he or she understands. This information may be sent in electronic form, to an electronic mail address (e-mail) indicated by the foreigner.