Poland: Extended right of residence of Ukrainians in Poland and other changes to immigration law

Further residence in Poland of Ukrainian nationals after 4 March 2024

In October 2023, it was decided at European Union (EU) level to extend temporary protection for those fleeing the war in Ukraine by one year, i.e. from 4 March 2024 to 4 March 2025.

However, as regards Ukrainian nationals and their family members under protection in Poland, the implementation of this decision requires a corresponding change to the statutory provisions in Poland, i.e. of the so-called Special Act concerning Ukrainian nationals.

Despite the EU decision, the Special Act provided and continues to provide that protection, including the right of residence, applies until 4 March 2024, with an exception mainly for children attending school on that date and their parents or guardians, where protection continues until the end of August 2024. In the context of the approaching date of 4 March 2024, Ukrainian nationals covered by the Special Act, and likewise their employers, remained uncertain about the right to continue residence in Poland after 4 March 2024, awaiting a legislative initiative to amend the national legislation in line with the EU decision.

We are therefore relieved to note that a draft amendment to the Special Act was published on 2 February 2024, which was referred to the Sejm (the lower house of the Polish parliament) on 6 February 2024 and was subsequently scheduled for deliberation in the Sejm on 7 February 2024. The draft provides for the extension of protection for persons covered by the Special Act, including the right to reside in Poland, until 30 June 2024.

However, further steps must be taken by the Sejm, the Senate (the second house of the Polish parliament) and the President before the amendment to the Special Act is promulgated in the Journal of Laws. If the bill proceeds smoothly, the legislative work will likely be completed in advance of 4 March 2024, and will ensure the continuity of the right of residence in Poland of the beneficiaries of the Special Act and its extension until 30 June 2024.

However, a veto to the amendment to the Special Act by the President cannot be ruled out due to the current political situation, which would then complicate the situation of Ukrainian nationals covered by the Special Act.

It is also somewhat surprising that the draft only provides for the extension of protection until 30 June 2024 and not until 4 March 2025, as per the EU decision. However, we know from the information accompanying the draft that the Government is planning a further extension of protection from 30 June 2024 to 4 March 2025, but at a later date. This is to be done as part of a broader review and comprehensive amendment of the Special Act, which we anticipate will deprive the beneficiaries of the Special Act of certain social benefits in the future.

There is a group of foreigners who are not covered by the Special Act but are protected in accordance with the subjective scope of the EU decision. Most but not all of these are citizens of Belarus who had a permanent residence permit in Ukraine before the war. For these foreigners, temporary protection certificates are issued and they are not affected by the discussed amendment to the Special Act. Their right to stay in Poland is automatically extended until 4 March 2025 in accordance with the EU decision. This is confirmed by a communication on the government website.

To sum up:

• the right of residence in Poland of persons covered by the Special Act only applies until 4 March 2024 (in certain cases until 31 August 2024);
• however, we expect this entitlement to be extended to 30 June 2024 in the next few weeks, or perhaps even days;
• foreigners covered by the Special Act and their employers should follow the status of the draft amendment to the Special Act;
• later, we anticipate a broader, comprehensive, amendment to the Special Act further extending the right of residence for its beneficiaries in Poland until 4 March 2025;
• the amendment to the Special Act does not concern foreigners excluded from it, but under temporary protection in accordance with the EU decision, who hold a certificate of temporary protection. The stay of these persons in Poland is already automatically extended until 4 March 2025, without the need to change the certificate.

Suspension of the Poland Business Harbour programme

The programme, Poland Business Harbour ("PBH"), made it possible to obtain special PBH visas for employees of companies relocating to Poland (the so-called PBH business route) and for IT professionals of certain nationalities who intended to take up employment in Poland at one of the companies participating in the PBH programme (the so-called individual route). It was also possible to obtain PBH visas for family members. The programme initially covered companies and specialists from Belarus, although the business route was later extended to other countries, and the individual route to citizens of Georgia, Ukraine, Armenia, Azerbaijan, Moldova and Russia (in the latter case, of course, with further changes).

The quick and easy path to obtain a PBH visa, which also allowed employment in Poland to be taken up without a work permit and the setting up of a business, made the programme very popular with IT companies and IT professionals, especially from Belarus.

However, on 26 January 2024, the Ministry of Foreign Affairs announced the suspension of participation in the PBH programme, which is especially relevant for the so-called individual route (the business route had already been suspended earlier). In the announcement, the Ministry of Foreign Affairs explains that the PBH programme is suspended until solutions are put in place that guarantee proper verification of its beneficiary companies and foreigners.

Companies and IT professionals therefore cannot now use the PBH fast track. But it is further possible to relocate under general rules, including to obtain a work visa.

Poland's new migration strategy for 2025-2030

On 1 February 2024, the Ministry of the Interior and Administration published a schedule of work for the creation of a new, comprehensive, migration strategy for 2025-2030.

Analysis and conceptual work is to be carried out in 2024 so that a new strategy can be adopted by the end of 2024. New legislation, including a new Act on foreigners, is to be adopted in the first two quarters of 2025.

Foreigners and employers should therefore keep an eye on further developments in this area, which may result in a revolution in the rules on the legalisation of foreigners' stay in Poland and their employment.

We also do not exclude the parallel resumption of work on and adoption of a new law on hiring foreigners, the draft of which, already put forward by the previous Government, contains significant changes for employers, including the removal of the labour market test procedure (the so-called 'starost information').

Implementation of Directive 2021/1883 and other changes

On 5 February 2024, the Chancellery of the Prime Minister announced that work on a draft (UC15) amendment to the Act on foreigners and certain other acts i in progress. The project is expected to implement Directive 2021/1883, the deadline for implementation of which lapsed in 2023, and to include other changes relevant to foreigners and their employers. In particular, the draft is to include solutions facilitating the application for a temporary residence permit for the purpose of performing work in a profession requiring high qualifications (the so-called blue card) and expanding the scope of rights of persons holding such a permit, and to implement an online procedure for applying for a residence permit.

On 31 January 2024, a change came into force to the way in which the purpose of the visa is recorded when a visa is issued for exercising the rights arising from a Pole’s Card.

Bird & Bird's immigration law team remains at your disposal and will support you in legalising the stay or employment of foreigners in Poland. You are welcome to contact us.