Office for Foreigners

The state of epidemic emergency and the state of epidemics related to infections with the SARS-CoV-2 virus are associated with several legal regulations still in force, establishing specific rules related to the stay of foreigners on the territory of Poland. Their introduction primarily aimed to counteract the adverse effects of restrictions in many aspects of social life (difficulties in crossing borders or dealing with official matters), justified by the need to counteract the spread of the SARS-CoV-2 virus.

Special solutions concern the extension of foreigners' residence permits, the validity of documents related to these permits and time limits for the performance of specific activities provided for by the law. The provisions are overwhelmingly part of the so-called COVID-19[i] Act and include

1. the basis for recognising the stay of foreigners on the territory of Poland as legal by virtue of law, in a situation where they were staying in the country based on short-term residence permits on 14 March 2020:

1. under the visa-free regime,
2. on the basis of Schengen visas issued by Polish authorities,
3. Schengen visas or long-stay visas issued by other Schengen States,
4. residence permits issued by other Schengen States,
5. long-stay visas or residence permits issued by European Union Member States that are not Schengen area countries (when, in accordance with the law of the European Union, such visas or documents entitle to stay on the territory of the Republic of Poland (Article 15z¹(1)).

2. extension by law:

• the periods of stay and the validity of national visas in cases where the last day of the period of stay under such visas would fall during an epidemic emergency or a state of epidemics (Article 15zd (1));
• the periods of validity of temporary residence permits expiring during an epidemic emergency or a state of epidemics (Article 15zd(3));

3. extending by law the expiring periods of validity of temporary residence permits during the epidemic emergency or epidemic state:

• the time limit for leaving the territory of Poland, pursuant to Article 299(6) of the Act on Foreigners[ii] of 12 December 2013 (Article15zzza);
• the time limit for voluntary return specified in decisions on the foreigner's obligation to return (now time limit for voluntary departure), pursuant to Article 315(1) of the Act on Foreigners (Article 15zzzb);
• the time limit for applying for a temporary residence permit, a permanent residence permit, a long-term resident's EU residence permit, a visa extension or an extension of stay under visa waiver (Article 15z);
• the periods of validity of residence cards (Article 15z² (1));
• the periods of validity of temporary identity certificates issued to foreigners for the duration of proceedings for the granting of international protection (Article 15z³ (1))
• the periods of validity of documents issued for a fixed period to nationals of the Member States of the European Union, the European Free Trade Association (EFTA) States party to the Agreement on the European Economic Area or the Swiss Confederation and to members of their families who reside with them or join them: documents confirming the right of permanent residence, residence cards of an EU citizen's family member and cards of permanent residence of a family member of an EU citizen (Article 15z⁶ (1));
• the periods of validity of Polish identity documents of the foreigner (Article 15z⁶ (3));
• the periods of validity of 'permit for tolerated stay' documents (Article 15z⁶ (5)).

All of the above extensions and the grounds for recognition of a foreigner's stay on the territory of Poland as legal (established in Article 15z¹ (1) of the COVID-19 Act) are limited in time until the expiry of the 30th day following the day of cancellation of the one of the states that was last in force.

In addition to rules strictly related to the stay of foreigners on the territory of Poland, the COVID-19 Act also contains provisions establishing other specific solutions that are indirectly relevant to the area of legality of stay and are related to the performance of work by foreigners. The specific rules in this respect are:

• extension by operation of law of the periods of validity of work permits and extensions of work permits falling during an epidemic emergency or state of epidemics (Article 15zzq(1));
• extension by law of the period of permissible work on the basis of a statement on entrusting work to a foreigner entered by a district labour office in the register of statements (Article 15zzq(3));
• the legal basis for the foreigner to perform work under conditions other than those specified in the work permit, seasonal work permit, statement on entrusting work, entered in the register of statements, or in one of the temporary residence permits, which specify the conditions for performance of work, if this is the result of the employer taking the opportunity to modify the content of the legal relationship constituting the basis for performance of work due to restrictions in social life caused by the spread of the SARS-CoV-2 virus (e.g. Article 15g(8) – reduction of working hours in conditions of economic downtime) (Article 15z⁵);
• specific access of a foreigner to seasonal work[iv] during the duration of an epidemic emergency, an epidemic state and a 30-day period following the cancellation of the last of these states, without the need to obtain a seasonal work permit, if during that period the foreigner held a work permit, a seasonal work permit, an extension of the work permit or an extension of the seasonal work permit, or a statement on entrusting work to a foreigner entered in the register of statements (which was valid after 13 March 2020 or after that date entitled to perform work) (Article 15z⁷).

The cancellation of the state of epidemic emergency on 1 July 2023 has resulted in the fact that the extension periods set out above, as well as the periods of existence of certain specific entitlements in terms of access to the labour market, will also end at the end of 31 July 2023.

Moreover, the legislation[v] also provides for extensions by operation of law:

• the periods of Pole’s Card validity falling during the period of an epidemic emergency or state of epidemics;
• the time limit for applying for the renewal of the Pole’s Card.

However, in the case of these arrangements, the relevant extensions are until 3 months after the date of cancellation of whichever state was last in force. As a consequence of the revocation of the state of epidemic emergency on 1 July 2023, these extensions are in force until 2 October 2023.

Specific legal situation of Ukrainian citizens

Due to the Russian aggression on the territory of Ukraine and the mass influx of Ukrainian citizens triggered by it, the provisions of the so-called Act on Assistance to Citizens of Ukraine[vi]  (hereinafter: "Special Act") specifically regulated the legal situation of Ukrainian citizens in the context of the rules of their residence on the territory of Poland.

In addition to the establishment of a general basis of stay recognised as legal until 4 March 2024 and the provision of related assistance institutions addressed to Ukrainian citizens arriving from 24 February 2022 from the territory of their country of origin due to the ongoing hostilities there, the Special Law also establishes a number of solutions supporting the process of legalisation of stay of all citizens of that country residing in Poland. Some of them are counterparts of the solutions discussed above provided for in the provisions of the COVID-19 Act.

The following extension arrangements should be mentioned in this context:

• the periods of stay and validity of national visas granted to citizens of Ukraine falling within the period from 24 February 2022 (Article 42(3a) of the Special Act) – equivalent to the extension of the periods of stay and validity of national visas provided for in Article 15zd(1) of the COVID-19 Act;
• the periods of validity of temporary residence permits granted to Ukrainian nationals falling in the period from 24 February 2022 (Article 42(5a) of the Special Act) – equivalent to the extension of the periods of validity of temporary residence permits provided for in Article 15zd(3) of the COVID-19 Act;
• the time limit for the implementation of the obligation of Ukrainian citizens to leave the territory of Poland under Article 299(6) of the Act on Foreigners falling in the period from 24 February 2022 (Article 42(6) of the Special Act) – the equivalent of the extension of the time limit for the implementation of the obligation to leave the territory of Poland provided for in Article 15zzza of the COVID-19 Act;
• the time limit for voluntary return specified (now the time limit for voluntary departure) set pursuant to Article 315(1) of the Act on Foreigners in decisions on the obligation of a foreigner to return issued to citizens of Ukraine, falling in the period from 24 February 2022 (Article 42(7) of the Special Act) – the equivalent of the extension of the time limit for voluntary return (the time limit for voluntary departure) provided for in Article 15zzzb of the COVID-19 Act;
• the periods of validity of residence cards issued to citizens of Ukraine, falling in the period from 24 February 2022 (Article 42(8)(1) of the Special Act) – equivalent to the extension of the periods of validity of residence cards provided for in Article 15z² (1) of COVID-19;
• the periods of validity of Polish identity documents issued to Ukrainian nationals falling within the period from 24 February 2022 (Article 42(8)(2) of the Special Act) – equivalent to the extension of the periods of validity of Polish identity documents provided for in Article 15z⁶ (3) of the COVID-19 Act;
• the periods of validity of 'permit for tolerated stay' documents issued to Ukrainian nationals falling in the period from 24 February 2022 (Article 42(8)(3) of the Special Act) – equivalent to the extension of the periods of validity of 'permit for tolerated stay' documents provided for in Article 15z⁶ (5) of the COVID-19 Act.

The Special Act (Article 42(11)) provides a legal basis for the stay of Ukrainian nationals on the territory of Poland considered legal for the period until 4 March 2024 if the permitted period of remain in that territory resulting from the possession of a Schengen visa issued by a Polish authority, a visa issued by another Schengen State, a residence permit issued by another Schengen State or under the visa-free regime fell within the period from 24 February 2022. This solution has no equivalent in the provisions of the COVID-19 Act. The provision of Article 15z¹ (1) of the COVID-19 Act, which refers to residence on the territory of Poland on 14 March 2020, is not such an equivalent. Consequently, for the provision of Article 42(11) of the Special Act to apply, the permissible period of stay resulting from a Schengen visa, foreign residence permit or visa-free travel should end on 24 February 2022 at the earliest.

In the period after 31 July 2023, the special solutions provided for in Article 42 of the Special Act will not be available to Ukrainian nationals whose stay is currently recognised as legal in relation to their stay on the territory of Poland on 14 March 2020 within the framework of permitted short-term stays, e.g. under the visa-free regime (Article 15z¹ (1) of the COVID-19 Act).

Similarly, if the provisions of the COVID-19 Act do not apply to a citizen of Ukraine, with the exception of the provision of Article 15z of the COVID-19 Act, which extends the time limit for submitting applications for residence permits, and by the end of 31 July 2023 he or she does not submit a relevant application to the voivode within the time limit extended on the basis of this provision, he or she will no longer be able to invoke the possibility of submitting such an application with his or her preservation and the resulting consequences for the legality of his or her stay during the proceedings.

It should be recalled that Article 42a(1) of the Special Act provides a specific, subsidiary ground for granting a temporary residence permit to a Ukrainian citizen for a period of 1 year, applicable until 4 March 2024. In the event that there was a ground for refusing to grant a temporary residence permit to a Ukrainian citizen due to the fact that he or she did not submit an application for such a permit in due time (pursuant to Article 100(1)(9) of the Act on Foreigners), there will always remain the possibility of granting this permit for a period of 1 year on the basis of Article 42a(1) of the Special Act.