《波兰外国人法2006》

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《波兰外国人法》03年制定06年修改

Immigration to Poland Introduction The Polish Act on Foreigners enacted on 13 June, 2003, (“the Act”), defines a foreigner as any person who does not hold Polish citizenship. A foreigner can cross the Polish border and stay in Poland if he holds a valid passport and a visa, unless provided otherwise by the Act. Additional documents are required for employment. The Act does not apply to citizens of the European Union (“EU”) countries and citizens of countries from the European Economic Area (“EEA”). The following table summarizes the various entry stay and residency provisions. Table 1 Entry and Stay in Poland

Purpose and period of stay	Permit	Employment	Remarks
Tourist up to 90 days	No permits	Not allowed	Applies only to citizens of countries which are parties to non-visa movement treaties signed by Poland
Any purpose other than employment or business, up to three months (five years in some cases)	Visitor’s visa (the type of visa depends on the purpose of the stay in Poland)	Not allowed	The applicant may apply for a residence visa to any Polish consulate outside of Poland
Employment or business, up to one year	Work visa or business visa	Allowed, on the basis of work permit issued by a local authority at the request of the prospective employer (for details see point F)	A work visa may only be issued by the Polish consulate competent with regard to the applicant’s place of residence
Any purpose for a period up to two years	Temporary Residency Card	Allowed, on the basis of work permit (for details see point F)	The applicant may apply for a temporary residence permit to the local authority (Voivodship Office) during his/her stay in Poland
Permanent residency	Permanent Residency Card	Allowed	A permanent Residency Card is also issued by the Voivoidship Office
Naturalization	Identification card	Allowed	Citizenship is solely granted by the President of the Republic of Poland.

Entry and Stay in Poland on the Basis of a Visa If a foreigner is a citizen of a state which is party to a non-visa movement treaty with Poland, a visa is not required for entry and stay as a tourist for a period not exceeding the agreed period (usually 90 days). At present, Poland has concluded treaties with approximately 60 countries. All remaining foreigners must obtain the relevant visitor’s visa by applying to the Polish consulate before entering Poland. In addition, when crossing the border the foreigner may be required to prove at request of a Polish customs officer, that he/she has financial means sufficient to cover the cost of entry, stay, and exit from Poland. This requirement is met if: i. a foreigner has Polish currency or foreign instruments of payment which are legally exchanged in Poland; or ii. a foreigner has the documents which enable the holder to obtain instruments of payment; or iii. a foreigner has documents confirming the reservation of and payment for food and lodging in Poland. A foreigner does not have to possess financial means if the foreigner: i. holds a permit to settle in Poland (permanent residency), ii. has been living legally in Poland for at least five years, iii. holds an invitation (in a specified form) either from a Polish citizen residing in Poland or from a legal person or other organization with its seat in Poland. In order to be valid the invitation must be properly registered at the Voivodship Office, Section for Foreigners at the request of the sponsor. The invitation remains valid for one year from the date of its registration. The sponsor is obliged to cover the costs of the invited person’s stay in Poland. A. Visa There are two basic types of visitor’s visas in Poland, namely:

• a short-term visa - which allows for either an interrupted stay in Poland not exceeding 90 days during a period of 180 days or a few shorter visits, the length of which cannot exceed 90 days in the aggregate within the period of 180 days starting from the day of the first entry; the short-term visa can be either a single, double, or multi-entry visa;
• a long-term visa – can be issued for a maximum stay in Poland not exceeding 365 days and is granted only in certain situations; according to the applicant’s declaration request. Such a visa remains valid for five years from the date of issuance.

A work visa is a specific type of visitor’s visa enabling a foreigner to be employed in the territory of Poland or to perform the duties of the Management Board member of a Polish company, if the time spent performing duties for the company exceeds 30 days per calendar year. It is issued on the basis of a promissory decision on a work permit granted by the Voivoidship Office upon the prospective employer’s request for a period of up to one year. In order to obtain this decision, the foreigner’s prospective employer must follow the procedure discussed below. A work visa is granted to a foreigner for a defined period of time, corresponding to the period of time indicated in the promissory decision on a work permit, but not exceeding 365 days. The first work visa is issued by the consul responsible for the applicant’s place of residence. If that work permit is extended, an applicant who is in Poland at the time may apply for another work visa or temporary residence permit for the purpose of employment through the Voivodship Office responsible for his/her place of temporary residence in Poland. B. Visa Refusal There are a number of circumstances when a visa will be refused. Among these are: 1. where the conditions necessary for the issuance of a specific type of visa are not fulfilled; 2. where the foreigner is on the list of “undesirable aliens”; 3. where the foreigner does not have adequate funds to cover the cost of his/her stay in Poland; 4. where there is suspicion that the issue of a visa could pose a threat to national defense or public safety and order or, may be harmful to the interests of Poland in some other way; 5. where the foreigner’s travel document will expire in less than three months from the date that he/she would have to leave Poland as a result of the expiry of their visa; 6. where less than one year has elapsed since the date of issue of a previous decision rejecting a visa application, and the foreigner failed to present details of any new circumstances; 7. where in the course of the visa application process:

a. the foreigner submitted an application or attached documents that contained inaccurate and/or false data, or b. the foreigner made false representations, concealed the truth or falsified or altered a document, with the aim of passing it off as an original, or actually submitted such documents as originals.

Stay in Poland on the Basis of a Temporary Residency Card Generally a visitor’s visa entitles a foreigner to stay in Poland for no longer than 90 days within a period of 180 days. If he/she intends to stay for more than 90 days, instead of extending the visa, the foreigner should apply for a temporary residence permit. When staying abroad, the application for the temporary residence permit should be filed via the consular office. If the foreigner is in Poland he/she should apply for that permit to the Department of Citizen’s Affairs in the Voivodship Office in the capital city of the respective voivodship. A foreigner may obtain a permit to reside in Poland for a specified period of time longer than 90 days, if the circumstances justify his/her stay for such a period. Such circumstances may include:

• having obtained either a promissory decision on a work permit or an extension of a promissory decision or employer’s statement in writing about the intention to entrust the foreigner with the work to be performed, providing the work permit is not required;
• carrying out business activity which is beneficial for the Polish economy; and in particular, contribution to the increase of investments, transfer of technologies, launching of a beneficial innovation or the creation of new jobs;
• receiving education; conducting training, or receiving professional training in programs held by the EU;
• being married to a Polish citizen or a foreign person who has a permit to settle;
• where the foreigner, as a renowned artist, intends to continue his/her work in Poland;
• where the foreigner intends to live together with a migrating employee as a family member, as defined in the European Social Charter adopted in Turin on 18 October, 1961.

Furthermore, a residential permit for a specified period may be granted to a foreigner who:

• proves that there are circumstances, other than those described above, that would justify his/her stay in Poland for a period of more than 90 successive days and that he/she has the financial means necessary to cover the costs of his/her stay in Poland;
• intends to undertake or continue studies in Poland, if he/she has proof of this fact in the form of a certificate from the educational establishment confirming that the foreigner has been accepted to such an establishment and that he/she has the necessary financial means required to cover the cost of such studies and the cost of living expenses during the period of study, without the need for state financial support.

The law provides for a list of circumstances where the foreigners’ marriage may be deemed as concluded solely for a purpose of obtaining a residency permit, in which case, the permit may be refused or revoked. The major circumstances are: the spouses live apart, the spouses have never met before the marriage, the spouses do not know each other’s basic data, the spouses do not know one common language, among others. Furthermore, a temporary residency card will be refused if:

• the foreigner does not meet the requirements as described in Article 53 of the Act which sets out the general guidelines permitting foreigners to reside in Poland;
• the foreigner is listed as an “undesirable alien”;
• the circumstances of the case show that the purpose of the foreigner’s visit or stay in Poland is or will be different than that declared;
• the application is submitted in connection with entering into a marriage relationship with a Polish or foreign citizen residing in Poland where such marriage was entered into with the aim of circumventing the regulations on issuance of temporary residence permits;
• this is required due to national security or national defense factors or due to the existence of a threat to public safety and order or a threat to any other interests of Poland;
• in the course of proceedings for the granting of a temporary residence permit:

a. the foreigner submitted a motion or attached documents containing inaccurate personal data or false information, b. the foreigner made false declarations or concealed the truth, or falsified or altered a document or submitted such false or altered documents as originals.

• the foreigner is in arrears with any State taxes;
• the foreigner stays in Poland without the required permission for his stay.

A Temporary Residency Card may be issued for a period of up to two years and may be extended for subsequent periods of up to two years. The total period of stay on the basis of a Temporary Residency Card is not limited. Issuance of a Temporary Residency Card may be refused for the same reasons as a visa. Extension of a Permit to Stay (Non-Visa Movement, Visas and Temporary Residency Cards) Residents of countries with which Poland has a non-visa movement treaty may remain for 90 days only on the basis of the valid passport. There are strict deadlines for submitting applications to issue or extend the relevant permits:

• extension of a visa – seven days before expiration of the current short-term visa or 14 days before expiration of the current long-term visa.

As a rule, a visa may be extended only once and only if all of the following requirements are met: 1. the foreigner has a valid professional or personal interest in obtaining such a visa or is applying for a visa on humanitarian grounds; 2. the events that led to the application for the visa extension were beyond the control of the foreigner and could not have been foreseen at the time of the issuance of the visa; 3. the circumstances of the case do not indicate that the purpose of the foreigner’s stay in Poland will be different than that actually declared; 4. the foreigner is not listed as an “undesirable alien”, has the adequate financial resources required to cover the costs of his/her stay or other circumstances as described in the regulations are not applicable;

issuance or extension of a Temporary Residency Card - 45 days before expiration of the current visa or Temporary Residency Card; and
• issuance of a Permanent Residency Card – 60 days before expiration of the Temporary Residency Card or the Visa.

If the foreigner submits his/her request within the deadlines and the authorities are not able to issue the requested permit before expiry of the current Visa or Temporary Residency Card, the authorities must grant the applicant a special visa for the period of the completion of the first-instance proceedings to grant a temporary residence permit. If the foreigner does not submit its request within the deadlines and the current permit expires before the new one is granted, the foreigner is obliged to leave Poland. Permit to Settle – Permanent Residency Card A foreigner who has resided in Poland for at least five years (in certain cases – three years) on the basis of a Visa and Temporary Residency Card can apply for a permit to settle and a Permanent Residency Card. A permit to settle is granted for an indefinite period and the holder does not need any special permits to be employed or to carry out business activities in Poland. To obtain a permit to settle, a foreigner has to fulfill all of the following conditions:

permanent economic or family links with Poland; secured accommodation and maintenance of support in Poland for himself/herself and members of the family; and
• immediately before submitting the application, the person has resided in Poland for at least five years on the basis of a permit to reside for a specified period of time and visas, or at least three years if the permit to reside for a specified period was granted as a result of joining family.

There are additional situations in which permanent residency will be granted. Permanent residency will be refused in the same situations in which a Temporary Residency Card is refused. Entry and Stay in Poland of the EU Citizens EU citizens staying in Poland beyond three months will be required to obtain a residence permit or temporary residence permit. As a result of the procedure of granting a residence permit or temporary residence permit, the EU citizen will obtain the EU citizen’s residence card. A residence permit is granted to an EU citizen on the condition that he/she:

intends to perform or performs work, business activity or a free profession in Poland for a period exceeding 12 months, and
• has health insurance and sufficient resources to cover his/her expenses without needing social security support.

Residence permits are valid for five years with the possibility of extension for further five-year periods. If an EU citizen staying in Poland in connection with work is, on the day of applying for the first extension of his/her stay, without such work, not due to his/her fault, but not for a period exceeding 12 months, the permit will be extended for 12 months. Temporary residence permits are granted to EU citizens who have health insurance and sufficient resources to cover their expenses without needing social security support, and who intend to:

take up studies – in such cases a permit for residence is for one year, to be extended by further one-year periods until completion of studies,
• perform work, conduct business activity or a free profession in Poland for a period of between 3 months to 12 months – in such cases the permit will be granted while that occupation is practiced.

Residence and temporary residence permits issued to an EU citizen cover family members (excluding relatives in the case of students). An EU citizen and members of his/her family may be denied a residence permit in order to protect public order and security, public health, or due to a threat to state security or defense. Decisions concerning residence permits and residence cards for EU citizens (including decision as to their extension and revocation) are issued by the voivode of the voivodship where the EU citizen intends to reside. The above requirements do not apply to persons who perform work or a free profession or conduct business activity in Poland, providing they retain permanent residence on the territory of another EU state, to which they return at least once a week. Polish Citizenship In general, Polish citizenship is obtained by birth if the child has Polish parents. A child acquires citizenship regardless of the country where he/she is born, if both parents are citizens of Poland or at least one of the parents is a Polish citizen and the other’s citizenship is either unknown or whose citizenship cannot be established, or who is stateless. A child, one of whose parents is a citizen of a foreign country, will acquire Polish citizenship by birth. However, by way of affidavit, executed before the proper Polish authorities within three months of the birth of the child, the parents can choose foreign citizenship for the child, if the laws of the foreign country grant the child citizenship based on descent from the foreign parent. Polish citizenship can be granted to that child if he/she executes an affidavit before the proper Polish authorities after turning 16, but before 6 months to the legal age expressing his/her intention to become a Polish citizen. Citizenship can be granted by the President of the Republic of Poland. A foreigner is eligible to apply for citizenship if he/she has resided in Poland for at least 5 years on the basis of a permit to settle. This period may be reduced to three years if a foreigner is married to a Polish citizen. However marriage to a Polish national does not affect the citizenship of either party. The granting of citizenship can be subject to submission of evidence of the loss or renunciation of foreign citizenship. If Polish citizenship is granted to a foreigner, it may apply to the foreigner’s children:

if the other parent is Polish; if the child is solely under parental control of the parent being granted citizenship; or
• if the second parent consents to granting the child citizenship.

The foreigner may be recognized as a Polish citizen if the foreigner is not a citizen of any foreign state and has lived in Poland on the basis of a permit to settle for at least five years. Employment of Foreigners In general, according to the Act on Employment enacted on April 20, 2004, a foreigner can be employed in Poland if: i. the prospective Polish employer obtains the promissory decision on a work permit from the Voivoidship Office, ii. the foreigner obtains a Work Visa or a Temporary Residency Card, and iii. after the foreigner’s entrance to Poland, the prospective employer obtains a work permit for him/her from the Voivoidship Office. It is also possible for a foreign entity, which provides its services in Poland on the basis of a contract of result concluded with a Polish entity, to send its employees to Poland to perform under such contract. To be considered a contract of result, the contract must specify the task to be performed. In both situations, a work permit has to be issued. There are some situations when a work permit is not necessary. According to the statutory provisions, the following foreigners are not required to obtain a work permit in order to work in Poland: i. individuals conducting training, receiving professional training or participating in advisory programs organized by the EU or in other international support programs, including those based on loans contracted by the Government of Poland; ii. foreign language teachers or teachers conducting classes in foreign languages on the basis of international agreements and understandings realized by the minister dealing with education issues; iii. foreigners who are permitted to work without work permits pursuant to international agreements and understandings to which Poland is a party; iv. members of armed forces and civil staff who work connected with the North Atlantic Corps; v. regular foreign correspondents working for mass media that pursue press, radio, television, film or photographic activities who were accredited by the minister dealing with foreign affairs at the request of a foreign editor-in-chief or a head of a foreign agency where the correspondent renders work; vi. foreigners who, individually or in groups, render artistic services such as those of actor, recitation performers, conductors, musicians, singers, dancers or mime artists; vii. foreigners delegated to work in foreign culture institutes in Poland based on international agreements, provided that this is reciprocal; viii. students of regular day university courses followed in Poland for a period not exceeding three months during holidays; ix. students working as part of their professional training organized by bodies, which are members of international students’ associations; x. foreigners who remain residents of foreign countries but are delegated to Poland by a foreign employer for a maximum period of three months in a calendar year in order to:

perform assembly and maintenance works or repair devices, constructions, machines or other equipment which are technically complete, if they were manufactured by a foreign producer; collect devices, machines or other equipment manufactured by a Polish producer on order; train the employees of a Polish employer who is a purchaser of devices, machines or other equipment referred to in point (i) with respect to the operation and use thereof; or
• assemble and disassemble stands and look after them if the exhibitor is a foreign employer who delegates foreigners for this purpose;

xi. foreigners who remain residents of foreign countries and who occasionally deliver lectures or speeches or hold presentations of considerable scientific or artistic value; xii. foreigners who are members of management boards of legal persons conducting business activities who remain residents of foreign countries and render work in Poland for up to 30 days in a calendar year; xiii. foreigners who are clerical persons who work in churches, church organizations or religious associations if such entities have been duly registered by the minister dealing with internal affairs and administration. xiv. foreigners acting as members of the management boards of legal persons conducting business activity, if they stay in the territory of Poland on the basis of a visitor’s visa in order to perform work, and the period of residence in connection with performing the function on the territory of Poland, regardless of the number of legal persons running the business in which the function is performed, does not exceed 30 days in the calendar year. xv. foreigners being a spouse of a Polish citizen when residing in the territory of Poland on the basis of a temporary residence permit issued as a result of the marriage, regardless of the foreigner’s citizenship. Employment of EU Citizens On 1 May, 2004, Poland joined the EU. One of the basic principles of the EU is free movement of people and freedom of employment. However not all of the current member countries have opened their labor markets to citizens of the new members. In response to this, Poland itself according to the reciprocity principle, has introduced some restrictions on free movement of workers. For the time being, the only exceptions will be for United Kingdom, Irish, Swedish, Spanish, Portuguese, Greek and Finnish nationals. Nationals from these countries do not need a work permit in Poland, as those countries have waived restraints in relation to access to their employment markets. The Polish labor market will also be open to new EU member countries (the Czech Republic, Hungary, Latvia, Lithuania, Estonia, Slovakia, Slovenia, Malta and Cyprus) and nationals of those members/countries will be able to seek employment in Poland without the need to obtain a work permit. With the exception of German and Austrian nationals, EU employees delegated to Poland to provide services on the basis of the 96/71/EC Directive do not need a work permit. Citizens of Germany and Austria posted to work in Poland need to apply for a work permit if they are to provide services in the following sectors: In the case of Germany: construction (including related branches), industrial, and interior decoration. In the case of Austria: Horticultural service activities, cutting, shaping and finishing of stone, manufacture of metal structures and parts of structures, construction (including related branches), security activities, industrial cleaning, home nursing, social work and activities without accommodation. Table 2 Procedure for issuance of work permits for foreigners

Stage 1	Promissory decision on a work permit
Stage 2	Work Visa / Temporary Residency Card
Stage 3	Work permit

A. Stage 1 The prospective employer must first offer the position to Polish citizens unless the employer is a foreign company which sends its employees to Poland. The offer should be sent to the relevant authority (the Regional Employment Office, REO) and should describe the individual requirements (qualifications, relevant practical experience or technical skills). As a rule, a promissory decision for a work permit is issued if there are no Polish candidates to be found on the domestic market. If there are no Polish citizens available that would be fit for the post described, the REO issues the appropriate confirmation to the employer in writing. Once the employer obtains confirmation from the REO, he submits an application for issuance of a promissory decision on a work permit for the foreigner, together with a copy of the confirmation. The employer is obliged to provide in the applications the personal data of the foreigner, the details of the foreigner’s passport document, and if any, information on the foreigner’s permanent place of residence and his/her place of residence in Poland. Furthermore, information should be given on the professional qualifications of the foreigner, his/her job post, the type of work performed, and the proposed employment post in Poland (including the level of remuneration proposed). The employer is further obliged to indicate the period of employment and describe the legal basis of the employment (e.g. employment agreement, service agreement etc.). The promissory decision is issued by the appropriate Voivoidship Office. The promissory decision on a work permit will be granted for a period not exceeding one year and it may be extended. B. Stage 2 After obtaining the promissory decision on a work permit, a foreigner has to submit an application for a work visa or a temporary residency card (if already in Poland) on his/her own initiative. The foreigner will be required to present the original promissory decision on a work permit granted to the prospective employer for this foreigner. C. Stage 3 The final stage is issuance of a work permit following submission of a separate application by the prospective employer. The work permit is issued by the appropriate Voivoidship Office, if the procedures to obtain the promissory decision for a work permit and the work visa are completed successfully. The work permit is issued for a period of no longer than the period of stay determined by the work visa, or no longer than the validity period of the temporary residency permit. Once the foreigner receives a work permit, an employment contract can be concluded with him/her for the period for which the work permit was issued. Furthermore the foreigner must be granted a work permit for each position of work he will perform in Poland. Penalties Pursuant to the Act, a foreigner may be deported from Poland: i. if the foreigner stays without the required permit to enter or stay; ii. if the foreigner does not have the financial means necessary to cover the cost of stay; iii. if the foreigner was employed or performed other gainful activity without the required permit; iv. if the foreigner is entered on the list of undesirable aliens - in the case of the foreigner entering Poland while still being listed as an undesirable alien; v. if the continued presence of the foreigner in Poland represents a threat to national defense or national security or a threat to public security and order or any other interests of Poland; vi. if the foreigner entered Poland illegally or attempted to enter Poland illegally; vii. if the foreigner failed to leave the territory of Poland by the date as provided for in a decision:

a. ordering him/her to leave Poland, b. refusing to grant a temporary residence permit, c. revoking a temporary residence permit;

viii. if the foreigner has outstanding tax liabilities towards the State Treasury; or ix. if the foreigner has just completed a jail term in Poland for a crime committed with intent or a fiscal crime. A person who does not leave Polish territory before or on the date of expiry of the permit is subject to a fine of up to PLN 5,000. According to the Act on Employment, an employer who employs a foreigner without the required work permit is subject to a fine of a minimum of PLN 3,000 and of up to PLN 5,000. A foreigner who works without a work permit is also subject to a minimum fine of PLN 1,000 or subject to deportation. Conclusion The procedures for obtaining legal residence and work permits are difficult and time consuming for foreign citizens. Citizens of EU countries, which have opened their labor market to Polish citizens, do not need to obtain work permits. For citizens of other EU countries, Poland has introduced transitional periods (these vary depending on the country and range from two to seven years) based on the reciprocity rule.

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