Legal stay should come before employment

Regardless of the industry sector, before allowing a non-Polish citizen to commence work employers should verify whether the foreign employee legally stays in Poland, and his/her rights to work.  

It’s easier for EU nationals  

Nationals of the European Union, the European Economic Area (Norway, Island, Lichtenstein) and the Swiss Confederacy (the “EU/EEA”) are in the most comfortable situation. Employers are mainly expected to verify, on the basis of passports or other valid documents confirming identity and nationality, that a future employee is indeed a national of these countries. The verification also confirms that the EU/EEA citizen may legally stay and work in Poland. As a rule, EU/EEA nationals should register their stay in Poland, if their stay is longer than three months. However, it is generally acknowledged that a breach of this obligation does not result in illegal work and encumbers not the employer but the foreign employee himself/herself. UK nationals are currently subject to specific regulations - a subject that merits a separate article.

But harder for non-EU/ EEA nationals 

Non-EU/EEA nationals face a different and more difficult situation. The multitude and in some cases unclear wording of laws and regulations governing work and employment of foreign employees often make employers consider foreign employees as “problematic”. 

The three key laws that regulate the stay and work in Poland of non-Polish employees, especially those from outside the EU/EEA are:

• the Non-Polish Citizens Act of 12 December 2013 (consolidated text, Journal of Laws of 2020, item 35, as amended),
• the Promotion of Employment and Employment Market Institutions Act of 20 April 2004 (especially chapter 16; consolidated text, Journal of Laws of 2020, item 1409, as amended; the “Promotion Act”) and 
• the Engagement of Foreign Workers Without Legal Residence Status in Poland Act of 15 June 2021 (consolidated text, Journal of Laws, item 769, as amended; the “Engagement of Foreign Workers Act”).

Verification of documents

Under Articles 2 and 3 of the Engagement of Foreign Workers Act, an employer is required to request, prior to employment, a valid document confirming that a foreign employee may legally stay in Poland. The employer is also required to keep a copy of such document throughout the entire term of employment.

Consequently, employers should be interested not only in the legal basis of employment of foreign employees in Poland (or, to be more precise, with the employer), but in the grounds for their legal stay in Poland. Therefore, the common belief that an employer is only responsible for legal employment of its foreign employees, while the consequences of their illegal stay in Poland will only be borne by that foreign employees, should be considered untrue. Quite the contrary, the consequences for the employer may be very serious (more on this in a subsequent article in this series). 

The catalogue of documents that an employer may encounter when verifying residence status of foreign employees is quite extensive.

The most common documents legalising the stay of non-EU/EEA nationals in Poland include:

• a valid national visa (D) or a Schengen visa (C)
• a valid temporary, permanent or a long-term EU residence permit decision
• a stamp in the passport of a foreign employee, confirming that an application for a temporary, permanent or long-term EU residence permit was submitted
• a visa-free movement status 
• a valid residence card of a family member of a non-EU/EEA citizen

Passport stamp

A non-EU/EEA national may present, as a proof of his/her legal stay in Poland, a passport stamped by the province office, confirming that an application for a temporary, permanent or long-term EU residence permit in Poland has been submitted. Such stamp means that a foreign employee in Poland is deemed to legally stay in Poland from the date of submission of the application until the date when the decision granting the temporary residence permit becomes final (Article 108(1)(2) of the Non-Polish Citizens Act). Such effect is excluded, if the permit granting proceedings are stayed at the request of a party.

The problem is that it is not the employer, but the foreign employee, who is a party to these proceedings. This means that the employer will not be informed that the application filed by the foreign employee was decided, and that a final negative decision was given, or that the proceedings were stayed at the foreign employee’s request. At the same time, however, it is not uncommon that the waiting period for the decision allowing the stay in Poland goes well beyond one year.

A prudent employer should implement an internal procedure to monitor the situation of employees staying in Poland “on the basis of a stamp” and periodically monitor their individual cases (e.g., requesting them to provide a valid confirmation of the pending proceedings from the province office).

Visa-free travel

Employers wishing to employ a foreign employee staying in Poland under the Schengen visa-free program (the current list of countries whose citizens are exempt from the visa requirement is available on the Polish Minister of Foreign Affairs website) face a slightly different challenge. A foreign employee may stay a maximum of 90 days under the visa-free regime in all Schengen countries (please note – inclusive of the days of entry and exit) during a 180-day period. The employer must remember that the beginning of the 90-day period commences from the date specified on the stamp issued by the border service. A number of stamps in the passport show the number of entries and exits, and it may be challenging for the employer to determine which stays (in which countries) add up to the limit, so that the number of days already “used up” for the stay in the Schengen zone is correctly calculated. 

In some countries biometric passport holders are eligible for visa-free travel. At times there are no stamps in the passport confirming the crossing of borders. 

Consequently, although employers may rely on the visa-free travel when verifying the employee’s right to stay in Poland, utmost duty of care must be exercised.

Also,  citizens of certain countries (i.a., the United States or Japan) are entitled to stay in Poland under a visa-free travel regime in accordance with rules which are more favourable than those mentioned above, owing to international agreements concluded between Poland and the countries.  These more favourable rules, however, do not apply to travel with the intention to take up employment. 

Legal stay in Poland during COVID-19 times

Special measures have been introduced in connection with the COVID-19 pandemic which allow a certain group (not all) of foreign employees in Poland to extend their legal stay, despite the expiry of current documents, until the 30th day following the day of cancellation of the state of epidemic emergency or the state of epidemic, whichever would be the last in force. 

Employers who rely on the provisions introduced amid the coronavirus pandemic, when verifying the right of a non-EU/EEA foreign employee to stay in Poland should make sure that temporary provisions legalising the stay of a foreign employee apply in his/her case. It is also to be noted that re-verification of the residence situation of a foreign employee needs to be done after the state of pandemic and the state of pandemic emergency is cancelled. 

International mobility 

Employers may consider it crucial not only whether a foreign employee legally stays in Poland, but also whether he/she is free to travel to other Schengen countries, in particular regarding some positions, especially managerial. This requires prior analysis and preparation of an action plan that would provide a foreign employee with the broadest possible options. An issue most commonly faced by employers is again the long waiting time to obtain a temporary residence permit. In the meantime, although an employee may remain in Poland after his/her visa has expired, on the basis of a “stamp” confirming the filing of the application, days of such stay are included in the “Schengen days” limit available to the employee (if the visa-free travel applies to such employee). In case of travel to the employee’s home country and his/her subsequent return to Poland, the stamp in the passport does not guarantee his/her right of entry to Poland; to do so, another visa may be required.  

This is the English version of the article published in the Polish daily Rzeczpospolita on 20 February 2021.