Poland recently announced planned changes in Polish immigration regulations.
The changes are explained further below.
I. Cancellation of possibility to obtain new Special Permission (simplified short-term work permit) for Russian nationals;
Effective October 28, 2022, it is not possible to file new applications for Special Permission for Russian nationals. Russia was removed from the list of countries whose nationals can work in Poland based on Special Permission.
The regulations secure the right to work for Russian nationals who have worked based on previously issued Special Permission. These employees will be able to work in Poland (on conditions specified in Special Permission) until the end of their Special Permission document (provided they also have the right to legally stay in Poland e.g. valid visa or Residence Permit).
Additionally, as of October 28, 2022, the remaining pending Special Permission applications will continue based on previous regulations i.e. Local Labour Office will issue Special Permissions for Russian nationals as a result of such applications.
Russian nationals are also permitted to work based on regular Work Permits or Residence Permits (e.g. Single Permit, Blue Card, Permanent Residence Permits). Furthermore, the new regulation does not introduce a general ban or additional limitations on issuing immigration documents for Russian nationals (other than Special Permissions).
In case of changes in conditions of employment, it will not be possible to obtain a new Special Permission. However, in the case of e.g. promotion, it is possible to legalize work based on e.g. Work Permit.
Note - risk re: interpretation of new regulation
The regulation is contradictory on the situation of Russian nationals if either 1) Russian nationals have not yet started work before October 28, 2022 based on previously issued Special Permission or 2) Special Permission applications are pending as of October 28, 2022 and work is planned to be started after issuance of this document.
The literal wording of the new regulation seems to support the idea that even if an employer has obtained Special Permission for a Russian citizen, but the employee has not started work on such documents before October 28, 2022, the Russian citizen may not be able to work.
In other words, literal interpretation seems to foresee e.g. issuance of a Special Permission on the basis of which a Russian citizen will not be able to start legal work.
On the other hand, the recitals of the draft mention the protection of rightfully acquired rights as a reason for continuing Special Permission cases and for the possibility to continue work by Russian nationals.
Also, by Polish general regulations on administrative processes, a situation in which acting based on an official decision of authority would lead to punishment (e.g. fine) is a basis for the invalidation of such a decision. Thus, the interpretation that the intention of regulation was to allow to issue of Special Permissions that do not allow one to work legally would be absurd.
Thus, it can be argued that Special Permission entitles Russian citizens to work also if the work was not started before October 28, 2022.
The Ministry's official interpretation could provide further clarification.
Lack of plans for an extension of the list of countries eligible to work based on Special Permission
Additionally, the Ministry has recently confirmed that as of right now, it is not planning to add more countries to the list of nationalities that are allowed to work based on Special Permission. New Special Permission applications will be possible for citizens of Ukraine, Belarus, Moldova, Armenia, and Georgia.
II. Planned removal of Covid regulations for foreigners (i.e. removal of automatic extension of immigration documents in Poland);
The regulation extending the right of foreigners to stay in Poland due to the coronavirus epidemic is planned to be canceled.
The change applies to persons who have not submitted applications for a residence permit but continue their stay in Poland e.g. on the basis of a visa that expired.
The cancellation of the regulation does not effect Ukrainian naionals who are protected by separate regulations.
We recommend that the affected group of foreign nationals submit Residence Permit applications as early as possible.
A deadline for submitting applications to legalize further stay in Poland by foreigners from this group is not yet known. It is planned that the regulation will enter into force after 30 days after official publication. Therefore the deadline for submitting applications would possibly be in the first half of December 2022.
Moreover, applicants should expect an increase in the number of submitted applications once the Immigration Offices releases an official announcement on their websites.
III Progress of work on the new bill on employment of foreigners
The Ministry continues work on a new bill on the employment of foreigners which is meant to e.g. fully digitalize work permit processes and remove the Labour Market Test process.
The draft was not yet passed to the Polish parliament, as some further changes are considered to be introduced in the draft (such as introducing notifications from Special Bill as a permanent solution for the employment of Ukrainians). However, the introduction of the new bill is still planned for until the end of 2022.
IV. Changes in administrative procedures in Poland and their impact on immigration cases
A non-immigration act (Act on simplification of administrative procedures for citizens and entrepreneurs) will modify the possibility to file official acceleration requests starting from November 9, 2022. Acceleration requests will not be processed by authorities if they are filed too early i.e. before the end of the official statutory deadline for finalizing a case.
Effective January 1, 2023, the filing of official acceleration requests in Residence Permit cases is limited by temporary regulations of Special Bill.
The change does not affect Work Permit or Special Permission processes.
In Residence Permit cases, official acceleration requests will not be processed if they are filed before the end of official deadlines for processing applications. In Residence Permits cases, the deadlines after changes in regulations are effective from January 29, 2022, and are counted on conditions specific to this type of case.
For example, for temporary Residence Permits deadline is set at 60 days after Immigration Office received all required documents. In immigration cases, authorities have quite broad discretion to request additional documents. New rules on using ponaglenie, may therefore in practice lead to disputes with Immigration Offices if the ponaglenie was not submitted too early and should be processed. This may further limit the rights of foreigners in dealing with excessive delays in Residence Permit processes.
Also, the Polish government is working on broader changes to general regulations of administrative procedures in Poland, applicable also to immigration cases. However, at this stage, the changes in the Code of administrative procedure introduced in the draft do not include changes that are material to immigration cases. This can however change during work on the draft.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
