Poland: The draft amendment to the Special Act on Ukrainian Citizens in Poland is now available

The Act is planned to enter into force on 1 July 2024. The Draft is now subject to public consultation and further legislative work. We therefore do not exclude its further changes, including significant ones.

Key changes

However, assuming that the basic assumptions of the Draft remain unchanged, the key changes for Ukrainian citizens working in Poland and their employers, once the Draft is finally adopted as binding law, are:

• Extending the legal stay of Ukrainian nationals (and certain other foreigners) with PESEL UKR status on the territory of Poland until 30 September 2025.

Currently, the right of stay for such foreigners applies until 30 June 2024, with some exceptions mainly for children attending school and their guardians, when the stay in Poland is considered legal until the end of August 2024 or the end of September 2024.

Similarly, the Draft provides for the extension until 30 September 2025 of the other residence titles specified in the Draft for Ukrainian nationals (including those without UKR PESEL).

• 7 days, instead of 14 days as currently, for employers to submit a notification on commencement of work by a Ukrainian national.

• As of the date specified in the communication of the Minister in charge of internal affairs specifying the date of implementation of technical solutions enabling the application of this solution, foreigners residing in Poland on the basis of a UKR PESEL, who have a UKR PESEL at the time of submitting the application and who previously held this status on 4 March 2024, will be able to apply for a residence card, the receipt of which will be equivalent to granting a temporary residence permit for a three years period.

This special residence card will be applied for electronically. This special residence card will exempt the foreigner from the obligation to have a work permit (also the employer will not have to submit a notification either). Based on this residence card, the foreigner will also be able to undertake and carry out economic activities. The residence card will not be linked to employment with a specific employer. However, it will be revoked if the foreigner leaves Poland for a period of six months or longer.

The full contents of the Draft, together with information on further legislative work, can be found at this link.

The Draft also introduces other changes relevant to Ukrainian nationals, inter alia:

• limiting the benefits to which they are entitled,

• introducing a procedure for the reinstatement of the UKR PESEL number addressing practical problems when sometimes UKR PESEL status is annulled without a clear reason,

• providing for the necessity of submitting a new notification when a Ukrainian national is re-registered by the employer with the Social Security Authority (ZUS),

• specifying in the notification the remuneration of the foreigner at least at the level of the minimum statutory salary,

• allows foreigners with PESEL UKR status to apply for a temporary residence permit for the purpose of family reunification, etc.

Key conclusions for employers and foreigners (employees)

• Assuming the Draft is enacted in a similar wording to the one currently proposed, employers employing foreigners with UKR PESEL status will not have to worry about their right to stay in Poland after 30 June 2024, including verifying whether the foreigner has applied for a temporary residence permit before that date. This is because the right to stay in Poland will be extended until 30 September 2025.

• Sometimes employers forget to submit a notification on hiring a Ukrainian national within 14 days of work commencement. The Draft shortens this deadline to seven days. Employers will have to increase their diligence in this respect.

• Foreigners currently holding a UKR PESEL, residing in Poland on this basis, who also held a UKR PESEL on 4 March 2024, will be able to obtain a special residence card for a three-year period by applying for it online.

The scope of entitlements under such a residence card will be broad and the card will not be linked to employment with a specific employer. In most cases, although the conclusion may be different in individual cases, such a residence card will be a better solution for the foreigner than the currently available alternatives.

Currently, a foreigner with UKR PESEL status can apply for three types of temporary residence permits, i.e., a temporary residence and work permit, a so-called blue card, or a permit for the purposes of carrying out business activity. Some foreigners have already applied for such permits or are planning to apply for them. So, the foreigner should consider whether this is advisable in their case and whether it is perhaps better to hold off applying waiting for the extension of the right to stay in Poland until 30 September 2025 and for introducing the possibility to apply for this special residence card.

A foreigner should also consider whether to act regarding an already submitted application for a temporary residence permit. In this respect, the Draft stipulates that when applying for the discussed special residence card, pending proceedings from the foreigner's previous application for one of the abovementioned temporary residence permits will be discontinued. However, this rule will not apply to persons who have already obtained one of such permits but would later like to apply for the discussed special residence card as a more favourable one. Depending on the wording of the final enacted Act, there is a risk that obtaining one of the temporary residence permits that can now be applied for by a foreigner with a UKR PESEL will exclude the possibility of later obtaining the special residence card discussed.

Authors: Michał Olszewski (Counsel), Katarzyna Bajorska (Paralegal) in the Employment team at Bird & Bird Poland