It is now quite common for companies to hire foreign nationals in Poland. But ambiguous laws and a multitude of regulations mean that any employer that wants to employ foreigners should investigate each case thoroughly.
No matter what the industry, before allowing a non-Polish national to work (and during the period of work), every entrepreneur should check:
- whether the person seeking employment is residing in Poland legally; and
- whether they have the right to work for the employer under specific terms.
Citizens of EU/EEA countries and Switzerland
It is quite easy to employ citizens of member states of the European Union, the European Economic Area (Norway, Iceland, Liechtenstein) and the Swiss Confederation (hereinafter: EU/EEA). Based on the candidate’s passport or another valid identity document, the employer simply has to verify that the prospective employee is indeed a citizen of one of those countries. If they are, and will be in Poland for more than three months, they just have to register their stay. A violation of this obligation, however, does not make their employment illegal, and is not the employer’s responsibility. Since Brexit, special rules apply to some citizens of the UK.
Citizens of non-EU/EEA countries
Employing citizens of non-EU/EEA countries is more challenging nowadays, so in the remainder of this chapter we will focus on them.
An employer seeking to employ a non-EU/EEA national has to verify the candidate’s residence status. In some cases, before the candidate starts working the employer also has to obtain additional documents authorising the candidate to work for the employer.
Things to remember
It is often thought that an employer is responsible for legal work, while a foreigner is responsible if they are in the country illegally. This is not true. In fact, the consequences are more serious for the employer if it is found that one of its workers is a foreign national who has no right to legally stay in Poland. Pursuant to Art. 2 and 3 of the Act of 15 June 2012 on the Consequences of Entrusting Work to Foreigners Residing in the Territory of Poland in Breach of the Law (Journal of Laws of 2021, item 1745, as amended), an employer must ensure that, before a foreigner starts work, they present a valid document authorising their legal stay in Poland. The employer must also keep a copy of the relevant document for the entire period of employment.
What experience shows
A foreigner’s right to stay in Poland and work for a particular employer is usually verified by legal or HR departments. When illegal employment occurs, it is usually due to circumstances that arise after the employee begins working. For example, a document authorising the foreigner to stay in Poland and/or work for the employer may expire if either party fails to extend its validity. Or the foreigner may start working in a job different from the one specified in the permit.
Employers, then, need to have policies in place for making sure their foreign employees’ documents are up-to-date. For example, if an employee’s right to stay in Poland relies on a pending residence permit application, then every two months (the law does not specify how often) the employer should ask the employee to present a certificate from the authority confirming that the permit procedure is still pending. Similarly, if an employee has the right to work without a work permit because they are a full-time student, every two months (as above) the employer should ask the employee to provide a certificate from their university confirming their student status.
The right to stay in Poland
The list of documents an employer may be faced with when verifying a foreign national’s residence situation is a long one. The most common documents are:
- a valid national visa (D) or a Schengen visa (C),
- a valid temporary residence permit, permanent residence permit or a long-term EU residence permit,
- the right to continued residence during the time until the proceedings are completed in the case of an application for a temporary residence permit, permanent residence permit or a residence permit for a long-term EU resident, confirmed by a stamp in the foreigner’s passport,
- visa-free travel,
- a valid residence card of a non-EU/EEA family member of a EU/EEA citizen,
- the right to stay for citizens of Ukraine (in some cases, also citizens of other countries) on the basis of the ‘Special Act’ (The Act of 12.03.2022 on Assistance to Citizens of Ukraine in Connection with the Armed Conflict on the Territory of Ukraine, Journal of Laws 2023, item 103, as amended).
Things to remember
A significant group foreigners have the right to stay or work in Poland because the validity of certain documents was extended pursuant to the COVID-19 regulations. Once the state of epidemic emergency is over, though, those regulations will no longer apply (although it is expected that foreigners will be given 30 days to settle their right to stay or work). Now is the time for employers to determine which of their employees, if any, are staying or working in Poland under the coronavirus regulations, and to take steps to make sure those employees continue to be entitled to reside and work in Poland after the state of epidemic emergency is over. Update: since this text in Polish was published, indeed, the COVID-19 afforded extensions of various immigration permits have been rescinded and such extensions ended (as a rule) with the end of July 2023.
Questions often asked by employers:
A foreign national is waiting for a temporary residence permit. Their visa expired. They want to go skiing in Austria. Will their stay in Austria be legal?
Most probably not (the regulations binding in the country of stay may be more favourable or more restrictive). After their visa expires and while they are waiting for a temporary residence permit (known as a ‘stamped stay’), the foreigner can legally stay in Poland only. They cannot travel to other Schengen countries on this legal basis. If they leave Poland, the mere fact that they are waiting for a temporary residence permit does not entitle them to re-enter the country. But this does not exclude the application of general principles. For example, if a foreigner still has unused “Schengen days”, they can travel on the basis of visa-free travel if they are entitled to it. A point to mention is that in other Schengen countries – including in situations where a Schengen border is crossed in a country other than Poland – when a foreigner national is leaving or coming back into Poland, the legal provisions extending the validity of visas and other permits in Poland in the context of the coronavirus pandemic probably won’t be respected (this is relevant when booking an intra-Schengen connecting flight). It is also important to remember that days of ‘stamped stay’ in Poland count towards the Schengen days limit.
Right to work – immediate employment
If a foreign national is authorised to stay in Poland and the grounds for their stay do not exclude the right to work (e.g., they are on a tourist visa), they can be employed immediately as long as they are exempt from the requirement to have a work permit and the combination of documents they hold is listed in Art. 87 of Act on Promotion of Employment. The documents employers most often come across that exempt a foreign national from having to have a work permit are:
- a visa with the annotation “Poland Business Harbour” (PBH visa),
- a visa issued for humanitarian reasons, due to state interest or international obligations (D21),
- a permanent residence permit or a long-term EU residence permit,
- a temporary residence permit granted due to marriage to a Polish citizen or a temporary residence permit for the purpose of family reunification (Article 159(1) of the Act on Foreigners) (The Act on Non-Polish Nationals of 12 December 2013, Journal of Laws 2023, item 547, as amended),
- a diploma or certificate of completion of full-time studies (including PhD studies) at a Polish university,
- a current certificate confirming the status as a full-time student (including PhD studies) at a Polish higher education institution,
- a Pole’s Card.
Questions often asked by employers:
Can I employ a foreign national who has presented a residence card with the annotation “Access to the labour market”?
This annotation can be misleading. Sometimes it just means that the foreigner can work for the (previous) employer specified in the permit decision (not for any employer). To verify this, it is usually necessary to ask the employee to produce the original decision on whose basis the residence card was issued.
When a work permit is necessary
If a foreigner is required to have a work permit, it is the employer who applies for it.
If a foreigner is employed for more than three months, the employer has to pay 100 zlotys in stamp duty for the permit, and has to wait from two weeks to a few months for it to be issued, depending on how smoothly things are running at the authority. If the work permit requires a prior ‘labour market test’, the whole exercise can take from a week to even a month longer.
Things to remember
When appointing a foreigner to a company’s management board or granting them a commercial power of attorney, there are different things to check. Depending on whether the foreigner is staying in Poland for this particular purpose, whether they have entered into an agreement with the employer, and whether the agreement refers to this particular position or to other tasks, the person may be exempt from the work permit requirement or may be required to have one or two (type A or type B) permits.
Not so fast – the labour market test
The authority runs a labour market test to find out whether on the local labour market there are any registered unemployed persons whose qualifications match those in the job offer submitted and who the employer could recruit. Before applying for a work permit (or before the foreigner submits their application for certain types of a temporary residence permit), the employer must go through the labour market test procedure, except in the following situations (inter alia):
- with respect to professions listed by a competent provincial governor, or
- in the cases indicated in the Regulation of 29 January 2009 on determining cases when work permits for foreigners are issued irrespective of specific conditions for issuing work permits for foreigners or
- when the foreigner meets other conditions exempting them from the labour market test requirement at a particular time (including the conditions specified in Art. 88c(3) or (8) of the Act on Promotion of Employment).
A faster path for a select few, i.e., filing a declaration
A faster track than applying for a work permit, which in practice takes from a few days to 2-3 weeks, is available for citizens of Armenia, Belarus, Georgia, Moldova or Ukraine (and does not apply to seasonal work). This is because, as an alternative to applying for a work permit, the employer can submit a statement at the relevant labour office on entrusting work to a foreigner (the stamp duty is PLN 100). Then there is no labour market test procedure.
Employing Ukrainian citizens
Because of the Russian invasion of Ukraine, special rules apply to persons fleeing the war and to other Ukrainian citizens. Within 14 days after a citizen of Ukraine starts working for an employer (this also applies to certain categories of other nationals who are beneficiaries of the “Special Act”), there is enough for the employer to submit a special notification at the following website here containing a brief description of the work entrusted to the foreigner. The notification is exempt from stamp duty. No advance work permit and no statement on entrusting work to a foreigner are required.
The employer, though, still has to verify the residence status of any Ukrainian citizens it employs. For persons whose stay in Poland is not linked to the war, this is done under the general rules (although the Special Act regarding Ukrainian citizens contains provisions that extend the validity of certain documents).
In the case of persons fleeing the war, their right to stay in Poland may be based on the provisions of the Special Act. It guarantees them the right to stay in Poland until 24 August 2023, and this will most likely be extended to 4 March 2024 (the legislative work is in progress; Update: since this text was published in Polish, indeed, the right to legal stay has been extended to 4 Marc 2024). If a foreigner’s right to stay in Poland is based only on the regulations of the Special Act, there is usually no document confirming their entitlement. So some employers have a procedure in place for verifying that the foreigners they employ meet the prerequisites for the right to stay as specified in the Special Act; others rely on the employee having a PESEL number with the designation ‘UKR’. This number confirms that a given person is classified by the authority as falling under the Special Act and has the right to stay in Poland, although it can be argued that this stance is not binding on other authorities and does not preclude a different assessment at some point in the future. Since a person’s UKR status can be lost or revoked, we recommend verifying it periodically (e.g. every two months; the law does not stipulate how often) that the foreign still has a PESEL UKR. This can be done electronically via Diia.pl function, available in the mObywatel application.
Things to remember
After analysing the list and combinations of documents specified in Art. 87 of the Act on Promotion of Employment that entitle a foreigner to work, the labour office concluded that, if the right of a Ukrainian citizen to stay in Poland results from the Special Act, their entitlement to work for an employer can only be guaranteed by a notification sent through the following website here.
Translating documents
Before signing an employment contract with a foreigner, an employer must provide them with a translation of the employment contract into a language they understand (not necessarily their native language). In our opinion, the same applies to certain internal labour law regulations or procedures, such as work regulations (if the foreigner cannot understand them; after all, they cannot be expected to confirm having read something they didn’t understand). By the same token, other communications a foreigner needs to understand (such as occupational health and safety training) also need to be translated.
B2B contracts
If an entrepreneur uses B2B contracts (which are especially popular in the IT sector) – leaving aside whether this is at all permissible from a labour law perspective – the immigration regulations must be considered. It is usually easier to hire a foreigner under an employment contract than a B2B contract. In addition, not every foreigner can register as self-employed, and there may be interruptions in their right to conduct such business activity (especially if they registered their business on the basis of a Poland. Business Harbour visa; Update: since this text was published in Polish, new rules have been adopted to make it easier for holders of Poland. Business Harbour visa to continue with their business also beyond the expiry of their visa).
This is the English version of the article published in the guide on employment, mandate and specific works contracts in the leading Polish legal journal Dziennik Gazeta Prawna on 26 June 2023.
For further information, please contact:
Siuzan Ali Khaled, Bird & Bird
siuzan.alikhaled@twobirds.com
