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Legal opinion regarding the most significant changes due to enactment of the new Law on Aliens

On 1st May 2014, a new Act on Foreigners dated 12 December 2013, came into force. The Act incorporates several new solutions intended to help foreigners studying and working in Poland and those applying for legal stay.

The procedure for the award of refugee status is laid down a separate piece of legislation, i.e. the Act on Providing Foreigners with Protection in the Territory of the Republic of Poland.

The amendments to the Act on Providing Foreigners with Protection in the Territory of the Republic of Poland, which regulates refugee status, related primarily to the changes in terminology effected in the new Act on Foreigners. Generally, the refugee procedure has not changed. The key amendments to said Act are as follows:

  • a change in the definition of an “unaccompanied minor” by indicating that adults are responsible for such a minor, in accordance with the law prevailing in Poland (before, it was worded to say “in accordance with the law or custom”);
  • an addition to the regulation on the provision of protection against persecution or risk of severe injury to include a phrase that such protection shall be deemed ensured if it is effective and permanent;
  • another regulation has been formulated and it follows from its wording that an applicant who is not in possession of evidence required for granting him/her refugee status, can present information necessary for establishing the facts;
  • where refugee status or additional protection is granted to an unaccompanied minor, the Head of the Office for Foreigners shall take steps intended to find the minor’s relatives.

Essentially, the procedure for awarding refugee status has not changed.

I. Legal grounds:

 1. Law on Aliens of 12 December, 2013, which shall enter into force on 1 May, 2014 (Polish Journal of Laws ‘Dziennik Ustaw’ of 2013, item 1650).

II. Novelty in the Law on Aliens:

1. Residence permits.

a)   Temporary residence permits.

The former residence permit having a defined validity period, has been replaced by a temporary residence permit with the maximum period of validity of the permit having been extended to 3 years. Moreover, an alien will be permitted to submit an application for temporary residence no later than on the last day of his legal residence, and not – as has been previously – no later than 45 days before the end of validity of his visa or his current residence permit. The person applying for such a permit will not have to submit the legal title to his or her occupied premises. It will be sufficient to prove that he or she has a place of residence in Poland. The new law does not provide for the opportunity to submit an application for a temporary residence permit through a consul. Such a request can be made solely in person, which is a result of the introduction of the need to take the alien’s fingerprints, which will subsequently appear on his or her residence permit. If the alien has not filed an application in person, the voivode (governor) shall send him or her an order to report in person within seven days, under pain of rejecting the application without consideration.

The amendments also apply to aliens who are planning to conduct economic activity in Poland and are therefore seeking a temporary residence permit. An alien living in Poland in connection with his or her economic activity, will have the opportunity to apply, through a single procedure, for a permit authorising him or her both to perform work in the established limited liability company, limited partnership and a partnership limited by shares and to reside in Poland in connection with the conducted business activities. Persons legalising their stay based on business activity benefit from explicit requirements necessary to obtain a residence permit. The Act clarifies the economic conditions which a company must fulfil in order so its owner is granted entitlement to receive the right to reside in Poland. As has been thus far, the company’s operations must be beneficial to the Polish economy – the new law provides specific requirements. 

The Act introduces the possibility of obtaining a temporary residence permit due to the need to respect the right to family life. 

The stipulations regarding Polish-foreign marriages will also change. The application for legalisation of residence can now be submitted solely in Poland (it is no longer possible to apply for a residence permit through consulates). 

b)   Permanent residence permit.

The former settlement permit has been replaced by a permanent residence permit. The requirement of knowledge of the Polish language in the case of applying for a permanent residence permit has been introduced. An alien applying for a residence permit and a residence permit for long-term residence of the European Union will have to prove their knowledge of the Polish language, which will be officially confirmed, or verified by a certificate of completion of Polish language studies in an appropriate school. The alien shall have the right to apply for an indefinite residence permit only after several years’ stay in Poland. The required length of stay depends on the legal status of an alien during said period. The Act introduces the possibility of obtaining the right to permanent residence for persons of Polish origin and Polish ID card holders who wish to settle permanently in Poland. According to the new provisions of law, permanent residence may also be granted to the children of those who have a residence permit for long-term residency of the EU, the right of permanent residence, as well as victims of human trafficking. The right to apply for a residence permit for long-term residents of the EU shall be granted to persons who have been granted international protection in Poland – refugee status and subsidiary protection. The principle of continuous residence on Polish territory in order to obtain the right to permanent residence permits an exception: ‘a departure due to particular personal circumstances’ such as for the purpose of taking care of a sick family member.

2. Single residence and work permit.

An alien working in Poland will be able to apply for a work permit and residence permit in a single procedure. Previous legislation stipulated that the employer must apply for a work permit for an alien, and the alien, only after obtaining work permit, could apply for a residence permit. Currently, in the event of job loss, the temporary residence permit shall be valid for 30 days, which will create an opportunity for finding a new place of employment. Previously, a job loss resulted directly in a loss of residence permit. The procedure for issuing work permits will not be liquidated. The employer will continue to have the opportunity to obtain a work permit, which will entitle him, inter alia, to apply for a visa for an alien wishing to work in Poland. In addition, the alien will be able to reside in Poland for one month without employment. During this time, he will not lose the previously granted temporary residence permit and work permit.

3. Visas.

An application for a visa extension may be made on the last day of legal residence. Thus far, this had to be submitted at least 3 days prior to the expiration of said period.

4. Facilities for aliens studying in Poland and graduates of Polish universities.

The first temporary residence permit will be granted to students of universities for a period of 15 months (one year and three months). If an alien is planning to stay in Poland for less than a year, the permit will be granted for the duration of the academic year or the studies, with an extension for three years. The Act also allows him or her to obtain a residence permit at the time of preparation by the student to undertake study (preparatory courses in Polish). Aliens who continue their studies in the following year will receive a temporary residence permit, valid for a period of three years, (previously 1 year). After completion of their studies at Polish universities, aliens (graduates) seeking work in Poland will be able to apply for a permit for an annual temporary stay without other conditions (such as having a permanent job or spouse).

5. Consent to stay for humanitarian reasons.

Consent will be granted to an alien in the event of his or her return to the country of origin would precipitate, among others, the threat of torture, inhumane treatment and a threat to the right to life, liberty and personal security. An alien shall be refused permission to stay for humanitarian reasons, if he or she has committed a crime in his or her country of origin or in Poland (including a crime against peace, a war crime or a crime against humanity), or poses a threat to the security and defence of the Polish state. Decisions on authorisation of stay for humanitarian reasons, as well as a tolerated stay permit shall be issued by the commander-in-chief of the Border Guard Regional Department or the commander-in-chief of the Border Guard unit.

6. Imposition on an alien of an obligation to return [to his country of origin] and the role of NGOs.

The new Act provides for changes in regulations regarding the imposition on an alien of an obligation to return [to his country of origin] – a decision in this regard will be issued by Border Guard (commander-in-chief of the Border Guard unit and the commander-in-chief of the Border Guard Regional Department). The period of time for voluntary return will be from 15 to 30 days from the date of issuance of the decision. In the absence of a final date, the decision will be subject to immediate execution. Appeals against a decision regarding an obligation to return shall be directed at the head of the Office for Foreigners.

Workers of NGOs and international organisations providing assistance to aliens will be permitted to participate in the activities undertaken in connection with the forced execution of the decision regarding the imposition on an alien of the obligation to return. They will have the right to observe all actions taken with respect to an alien in this process as well as the right to communicate with said alien.

7. Guarded centres for aliens and detention facilities for aliens.

Minor aliens residing in Poland without a guardian, in accordance with the new law, will be afforded a place in a guarded centre only if they have reached the age of 15. The restrictions will also extend to pregnant women – detention facilities for aliens will only accept women up to the 4th month of their pregnancy, and not, as is currently the case, up to the 7th month. In addition, the Act will introduce alternatives to detention measures.

8. Stipulations regarding aliens being victims of human trafficking.

The new act includes a provision regarding aliens who are victims of trafficking in human beings – under the new regulations, they will be permitted to apply for a certificate confirming the presumption that they are a victim of human trafficking. The certificate legalising their stay will be valid for three months from the date of issue, and in the case of minors – for four months. It will be issued by the authority conducting the proceedings in the case of trafficking. A temporary residence permit will be granted for at least six months, subject to the conditions set out in the Act.