Legal employment institutions of foreigners in Poland

The existing rules on the employment of foreigners are very complicated. As it turns out, the Polish legislature interferes quite far with administrative and legal methods in the sphere of employment relations, in which the person doing work is a foreigner.

This applies not only to foreigners themselves, but also to those using their work. Foreigners, in the field of employment services, were divided into two groups – those whose employment rights are aligned with those of Polish citizens and others who are subject to a number of restrictions.

This study aims to present a catalogue of restrictions faced by foreign nationals from countries third, intending to take legal work in Poland.

1. Introduction

The basic legal act governing the mechanisms of legal admission of foreigners to the Polish labour market is the Act of 20 April 2004 promoting employment and labour market institutions 1 (Further as: Employment Promotion Act).

This law has a direct link with another legal act which directly affects the legality of the work of foreigners in Poland, i.e. the Act with 12 December 2013 about foreigners 2 (Further as: Foreigners Act). This one. second The legal act is used to describe how foreigners legally reside in Poland.

This is of great importance because the legal performance of work by the foreigner will only occur during the legal presence of such a person in Poland.

Under Article 2(1)(14) The Employment Promotion Act provides a definition of the illegal performance of work by a foreigner who “means the performance of work by a foreigner who is not entitled to work within the meaning of Article 87(1) or does not have an adequate work permit, without being exempt under specific provisions from the obligation to have a work permit or whose residence is not entitled to work.’ At this stage, particular attention should be paid to the last element of the abovementioned provision, which shows that the validity of the residence base determines the legality of the actual performance of work by the foreigner.

2. Basics of foreign residence in Poland

Visas are among the most common residence grounds for citizens from non-EU or EEA countries. The basic type of visas are the so-called national visas. A precise description of the national visa institutions includes Article 18 Schengen Executive Convention 19 June 1990 3 .

This description indicates that national visas are also referred to as ‘long-term visas’. This means that they allow a foreigner to stay in the country of destination from 90 days to 1 year.

It should be pointed out that the foreigner can obtain a visa document only in the country of his origin, making an appropriate application to the Polish Consul.

Another important and relatively new facilitation of entry into the European Union for foreign nationals third There's a visa-free movement. It should be pointed out here that the visa-free movement institution is in effect reserved for the exclusive competence of the European Union.

This is the European Union as a result of negotiations with countries third includes relevant international agreements under which citizens of these specific countries may enter for a maximum period of time 90 days to the Schengen area.

The key legal instrument in which individual countries whose citizens can enter the European Union without having to have a visa are listed Regulation (EU) 2018/1806 to 14 November 2018 4 . In Annex 2.

to this Regulation the catalogue of countries, among which we can find Ukraine, Georgia and Moldova as countries, has been closed third, but geographically close to Poland. In recent times, many citizens of these countries have chosen Poland as a goal of economic emigration.

However, in order to benefit from this EU benefit, citizens of the countries indicated should have biometric passports.

Finally, more advanced foreign residence titles in Poland include temporary residence permits, commonly called temporary residence cards. Unlike visas, we can only obtain these documents in Poland, after passing complicated procedures before the competent voivodes due to the foreigner's place of residence in Poland.

These licences shall be issued in principle for a period from 3 months up to the maximum 3 years. The foreigner, holding a valid passport and a temporary residence card, is entitled to enter the territory of Poland an infinite number of times during the period of validity of the residence decision.

3. Work permits for foreigners

Under Article 88 The Employment Promotion Act presented a catalogue of situations that require foreigners to have work permits to perform it. It should be noted here that administrative and legal permissions refer to the admission of the foreigner to the actual performance of his contractual duties.

It is worth pointing out that the provisions of certain Member States of the European Union do not permit the conclusion of relevant agreements with foreigners at all until they have obtained appropriate permits.

In practice, this means that employers in Germany, the United Kingdom or France, before they reach the moment of drawing up contracts with foreigners, should check whether they will have the right to reside in their country and whether they will have the right to actually do their job.

The model described here in the doctrine of European law is called so-called Right to Work Check.

In the Polish system of employing foreigners, which, by the way, remains a minority to the above presented solutions, a completely different model was chosen. That is, work permits do not depend on their earlier ability to sign a contract of employment or a civil law contract, on which the foreigner will perform his duties.

Thus, we can find the permits required in the Employment Promotion Act if:

1. the foreigner carries out work in the territory of the Republic of Poland on the basis of a contract with an entity whose place of residence or branch, establishment or other form of organised activity is located in the territory of the Republic of Poland;
2. in connection with acting on the board of directors of a legal person entered in the register of entrepreneurs or a capital company in an organisation or in connection with the conduct of matters of a limited partnership or limited partnership as a supplemental, or in connection with the granting of a proxy to him, he resides in the territory of the Republic of Poland for a period exceeding the total 6 months in the following months 12 months;
3. performs work with a foreign employer and is posted to the territory of the Republic of Poland for a period exceeding 30 days in the calendar year to a branch or plant of a foreign entity or a related entity, within the meaning of the Act of 26 July 1991 on personal income tax 5 , with a foreign employer;
4. performs work with a foreign employer who does not have a branch, plant or other form of organized activity in the territory of the Republic of Poland and is posted in the territory of the Republic of Poland to perform a temporary and occasional service (export service);
5. performs work with a foreign employer and is posted to the territory of the Republic of Poland for a period exceeding 30 days over the next 6 months for purposes other than those indicated Under point 2-4.
6. Statements of entrustment of work

A simpler form of hiring foreigners in Poland is a statement about entrusting the work to a foreigner. Unlike work permits, this document is intended for national citizens third. On the basis of statements, citizens of Ukraine, Belarus, Russia, Moldova, Georgia and Armenia may be employed in Poland. According to Article 90(10) Employment Promotion Act was issued by the Minister of Family, Labour and Social Policy 8 December 2017 6 , in which the list of the abovementioned countries was presented.

Interestingly, in the case of work permits, the employer must go through a time-consuming procedure before the competent authority due to the company's registered office. Declarations shall be made to employers in accordance with their declaration to the competent county office after a small number of premises have been verified by the employees of the office. Declarations are much cheaper documents than work permits.

Achievement one statements of entrustment of work to a foreigner cost 30 PLN, not 100 PLN, as is the case with work permits.

In addition, according to Article 88z(4) The Employment Promotion Act “in cases not requiring investigation, the District Labour Office shall enter a declaration of entrustment of work to the foreigner in the records of statements...

no later than the deadline 7 working days from the date of receipt of the declaration and in cases requiring investigation, no later than the time limit 30 the days after receipt of the declaration.’

This time rule does not apply to work permits – in this case, the legislator has not provided for any framework which the voivode cannot exceed by issuing a decision.

5. Seasonal work permits

Through the actions of the European Union, the Polish legal order was implemented Directive 2014/36 to 26 February 2014 on the conditions of entry and residence of nationals of countries third for employment as a seasonal worker 7 . To Article 88 Employment Promotion Act has been added section 2, which results in a seasonal work permit.

As in the case of declarations of entrustment of work to foreigners, seasonal work permits shall be issued by an old man competent for the seat or place of residence of the person entrusting the work to the foreigner.

The name itself in practice can be very misleading because of the impression that this should be done before the right voivode. Despite its name corresponding to classic permits, it is most closely related to statements. The fundamental difference is that on the basis of this document foreigners can be employed only in individual economic areas.

Sections of agriculture, forestry, hunting and fishing, as well as accommodation and catering activities, are among the sub-classes of activity (PKD) where seasonal work is authorised for foreigners.

In practice, this means that, on the basis of declarations of entrustment of work to a foreigner, we can hire him in any area of the economy except those reserved for seasonal work. In addition, seasonal work permits can be used to employ citizens from all countries of the world, not just six countries reserved for declarations of entrustment.

6. Summary

The topic concerning the employment of foreigners in Poland is currently very popular. More and more people are trained in procedures and proper procedures before offices. The rules themselves are quite clearly described.

However, employers have problems with the fact that too many applications to obtain permits lead to a situation where procedures are extended by several months. Which means that in many places there is a risk of illegal entrusting work to foreigners.

It is possible that the long-awaited amendment to the law will modify the current rules – it seems that this is likely to happen In the first half 2020

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1 Journal of Laws of 2019, item 1482.

2 Journal of Laws of 2018, item 2094.

3 Official Journal of the European Union L (2000), No. 239.

4 Official Journal of the European Union L, No. 303, p. 39.

5 i.e. Journal of Laws of 2019, item 1387 as amended

6 Journal of Laws of 2017, item 2349.

7 Official Journal of the European Union L, No. 94, p. 375.