On 27 January 2023, an amendment (the “Amendment”) to the Act on Assistance to Citizens of Ukraine in Connection with Armed Conflict on the Territory of that State and Certain Other Acts (the “Special Act”) was published in the Journal of Laws.
The Amendment requires employers employing beneficiaries of the Special Act (mainly citizens of Ukraine and certain members of their families who came to Poland legally from Ukraine starting from 24 February 2022 in connection with the hostilities on the territory of Ukraine) to take additional measures.
Also, because of the Amendment, as of 24 August 2023, the so-called COVID provisions extending the periods of foreigners’ right to stay in Poland or the right to work (included in the Act on Special Solutions Related to Preventing, Counteracting and Combating COVID-19, other Infectious Diseases and Crisis Situations Caused by Them) will no longer apply.
This change applies to all foreigners (non-EU/EEA/Swiss nationals) and their employers, not only to Ukrainian nationals.
Below we present some selected practical effects of the Amendment from the employer’s perspective.
1. Temporary residence permit
Under the previously applicable provisions, beneficiaries of the Special Act were supposed to apply for a special temporary residence permit under special rules. This permit was to be issued almost automatically, without the need to involve the employer in the process.
This type of special permit has been removed from the Special Act under the Amendment.
However, as of 1 April 2023, beneficiaries of the Special Act will be able to apply under the general rules for a temporary residence permit:
- for a so-called unified permit – for temporary residence and work; or
- to work in a highly qualified profession (so-called blue card); or
- to carry out a business activity.
Therefore, because under the Amendment the special permit is no longer available to beneficiaries of the Special Act, employers employing beneficiaries of the
Special Act should expect their employees to request the documents from them needed to obtain the so-called unified permit or the so-called blue card under the general rules, for example:
- Appendix 1 to the application for a temporary residence permit indicating, inter alia, job title, scope of basic duties, working hours and salary;
- Registration and payroll documents confirming health insurance coverage.
The situation of beneficiaries of the Special Act who do not meet the general conditions for obtaining one of the above three permits (e.g., children) is unclear. Apart from the above-mentioned three types of temporary residence permits, beneficiaries of the Special Act cannot currently apply for other types of temporary residence permits (as a rule, their applications will be refused). Although these persons retain the right to reside in Poland until 24 August 2023, it is not clear at this point how they can obtain an extension.
2. Obligation to apply for a PESEL UKR number
The Amendment requires beneficiaries of the Special Act to apply for a PESEL UKR within 30 days of their arrival in Poland. Under the transitional provisions, within 30 days of the entry into force of the Amendment (i.e., on 28 January 2023 in this respect), beneficiaries of the Special Act who have already arrived in Poland must also apply for a UKR PESEL (if not done earlier).
Although the Amendment does not set out the consequences of a failure to comply with this obligation, when employing a beneficiary of the Special Act, we recommend verifying whether the foreigner has applied for a UKR PESEL within 30 days.
We would like to remind employers that when employing a beneficiary of the Special Act, the employer should, inter alia:
- Verify the foreigner’s status as a beneficiary of the Special Act, including in particular whether the foreigner has a PESEL UKR;
- Submit the notification referred to in Article 22 of the Special Act via praca.gov.pl within 14 days of starting work (and then submit a new notification if certain of the conditions of work change);
- Periodically verify (the law does not impose a specific frequency here) that the status of the beneficiary of the Special Act remains valid (including, in particular, that the PESEL UKR status has not been revoked);
- This is because, i.e., the status of the beneficiary of the Special Act may be revoked (of which the employer will not be notified) in certain cases, e.g., departure outside of Poland for a period exceeding 30 days (under the Amendment, one month has been replaced with 30 days in this respect).
Unfortunately, it is not uncommon that a PESEL UKR is revoked without a clearly defined reason and legal basis, and if so, this should be clarified immediately;
Verify in due advance the employee’s right to further stay in Poland after 24 August 2023.
3. Temporary protection in another EU state will deprive the status of a beneficiary of the Special Act
Under the Amendment, the status of the beneficiary of the Special Act will not be granted (and therefore such persons, i.a., will not obtain a PESEL UKR) to persons covered by temporary protection on the territory of a European Union (EU) member state other than Poland granted due to hostilities conducted on the territory of Ukraine.
According to the transitional provisions, persons who enjoy such temporary protection in another EU country on the date of entry into force of the Amendment (i.e., on 28 January 2023 in this respect) will lose their status as beneficiaries of the Special Act on the date the Amendment enters into force. This will primarily concern those who, after the war has started, initially lived in another EU state, and obtained temporary protection there due to hostilities on the territory of Ukraine and then moved to Poland and never relinquished (or were deprived of) their temporary protection in the former EU state of residence.
Considering practical experience to date, we are also concerned that on this basis the status of the beneficiary of the Special Act of persons who came to Poland not directly from Ukraine, but via another EU state, may be questioned, depending on which legal basis and under which legal mechanism this other EU state allowed them to enter its territory for further travel to Poland (i.e., whether this was under temporary protection).
From the employer’s perspective, the employee’s status as a beneficiary of the Special Act should be carefully verified.
4. The end of the so-called COVID provisions extending the period of foreigners’ right to stay or right to work
This change applies to all foreigners and their employers, not only to beneficiaries of the Special Act.
Quite a large group of foreigners derive their right to reside or work in Poland based on the so-called COVID provisions, which extend the right to reside or work in Poland in various ways, usually for the period of the state of epidemic threat or state of epidemic, and for the period until the expiry of the 30th day following the day of cancellation of the state which was in force last.
These foreigners and their employers should note that, under the Amendment, these provisions will cease applying as of 24 August 2023. Thus, before 24 August 2023 at the latest (as the so-called COVID provisions may cease applying also earlier if the state of the epidemic emergency is recalled), those foreigners who base their entitlement to stay in Poland or to work or to carry out business activity from the so-called COVID provisions, as well as their employers, should be prepared that these provisions will no longer apply.
For example, this may concern a foreigner who relies on a Poland. Business Harbour visa, which has already expired (according to the date specified on the visa), but which has been extended by operation of law based on the so-called COVID provisions, to carry out business activity in Poland or to work without a work permit.
Therefore, such a foreigner (or their employer) should obtain the relevant document (e.g., temporary residence permit for the purpose of business activity; a work permit) before the so-called COVID provisions no longer apply to continue their business activity or for their employer to continue employing them.