New temporary residence permit for foreigners in Poland

Service

In accordance with the need to adapt Polish law to Directive 2014/66 / EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and stay of third-country nationals under an intra-corporate transfer, on February 12, 2018, the Act amending the Act entered into force on foreigners and certain other acts adopted on November 24, 2017.

One of the amendments to the Act on foreigners is the addition of a new chapter 3a - "Temporary residence permit for the purpose of performing work under the intra-corporate transfer", and chapter 3b - "Stay of foreigners on the territory of the Republic of Poland for the purpose of mobility".

Accordingly, the new Art. 139a specifies that "a temporary residence permit for the purpose of performing work as part of the intra-corporate transfer is granted when the purpose of the foreigner's stay on the territory of the Republic of Poland is to perform work in the host unit, having its registered office in the territory of the Republic of Poland, as an employee of the managerial staff, specialist or an employee participating in an internship, and the conditions specified in this provision are cumulatively met ”.

However, according to the new Art. 139o of the Act on Foreigners, "a temporary residence permit for the purpose of using long-term mobility is granted when the purpose of the foreigner's stay on the territory of the Republic of Poland is the use of long-term mobility and the conditions specified in this article are jointly met".

In view of the above, we can distinguish two new types of temporary residence permits:

  • in order to perform work under the intra-corporate transfer,

  • in order to take advantage of long-term mobility.

Who can obtain a temporary residence permit in connection with secondment to work within one company?

It is worth pointing out that a permit to perform work as part of an intra-corporate transfer may be granted to a foreigner who has professional qualifications and necessary experience adequate to the subject of activity. Professional requirements should be tailored to the needs of the enterprise to which the employee is transferred, but should also comply with the provisions of regulated professions, required in the Member States of the European Union.

The posted worker immediately prior to the intra-corporate transfer should be employed in the same enterprise or the same group of enterprises continuously for a period of at least:

  • 12 months - in the case of work as an employee of the management staff or specialist,

  • 6 months - in the case of work as an intern.

A foreign employee should have health insurance within the meaning of the provisions of the Act of 27 August 2004 on health care services financed from public funds or confirmation that the insurer covers the costs of treatment in the territory of the Republic of Poland. It is worth remembering that the employee should have a place of residence in Poland.

Therefore, the above permit is issued for temporary residence to employees whose place of residence is outside the territory of EU Member States, European Free Trade Association (EFTA) Member States, parties to the Agreement on the European Economic Area or the Swiss Confederation.

Who can obtain a temporary residence permit in connection with long-term mobility?

An employee-foreigner who intends to use a temporary residence permit in connection with long-term mobility should have formal qualifications and meet the conditions required in the event of the intention to entrust him with work in a regulated profession in accordance with the professional qualifications acquired in the Member States of the European Union.

The employee should have health insurance within the meaning of the Act of 27 August 2004 on health care services financed from public funds or confirmation that the insurer covers the costs of treatment in the territory of the Republic of Poland. It is worth remembering about providing this employee with a place of residence in Poland and the possibility of returning to his old place of work to his home office, after the end of the intra-corporate transfer period. The employee should keep an appropriate remuneration.

The period of validity of new temporary residence permits

Pursuant to Art. 139p of the Act on foreigners, a temporary residence permit in connection with mobility is granted for a period not longer than the period of validity of the residence permit held by the foreigner, referred to in art. 1 clause 2 lit. and Regulation 1030/2002, with the annotation "ICT", issued by another Member State of the European Union.

In a situation where the purpose of the foreigner's stay on the territory of the Republic of Poland is to perform work as an employee undergoing an internship as part of an intra-corporate transfer, the permit is granted for a period of up to 1 year, however, this period may not be longer than the period of validity of the foreigner's document. residence permit referred to in art. 1 clause 2 lit. and Regulation 1030/2002, with the annotation "ICT", issued by another Member State of the European Union.

A temporary residence permit for the purpose of performing work under the intra-corporate transfer for foreign employees who are on an internship will be issued for a maximum period of 1 year. As for the management and specialists, a temporary residence permit will be issued for a maximum period of 3 years. After the expiry of the validity periods of the temporary residence permits referred to above, foreigners will be obliged to leave the territory of the Member States. However, they will be able to stay if they have a residence permit based on other European Union regulations or the internal regulations of the country where they are staying.

Who submits the application for an authorization?

Pursuant to Art. 139t of the Act on Foreigners, when it comes to a temporary residence permit for the purpose of using long-term mobility, the application for granting a permit to a foreigner who stays on the territory of the Republic of Poland is submitted by the host entity, no later than on the last day of his legal stay in this territory. The host entity may submit an application for granting a permit to a foreigner who stays outside the territory of the Republic of Poland, and his stay is considered legal from the date of submitting the application to the date on which the decision on granting a temporary residence permit becomes final, if legally valid. the foreigner's entry into the territory of the Republic of Poland after submitting this application.

It should be pointed out that the temporary residence permit for the purpose of performing work under the intra-corporate transfer is granted (or refused to be granted) by the voivode competent for the seat of the host entity, by way of a decision (cf. Article 139i of the Act on foreigners).

In the procedure for granting the permit referred to in Art. 139a paragraph. 1, only the host entity is a party to the proceedings, which shall immediately notify the voivode in writing of any change in the circumstances affecting the conditions for granting this permit (cf. Article 139k of the Act on foreigners).

It is worth pointing out that in Art. 106a of the Act on Foreigners provides information on the details that should be included in the form and attachments to the application for a temporary residence permit in order to perform work under the intra-corporate transfer or to use long-term mobility.

Types of mobility

It is worth adding that pursuant to Art. 3 sec. 7a of the Act on foreigners, mobility means the right of a foreigner to enter and stay in the territory of the European Union Member States in order to perform work in a host unit based in a given European Union Member State as a managerial employee, specialist or intern, as part of an intra-corporate transfer resulting from the possession of a valid residence permit referred to in art. 1 clause 2 lit. and Council Regulation (EC) No. 1030/2002 of June 13, 2002 establishing a uniform format for residence permits for third-country nationals (Journal of Laws UE L 157 of June 15, 2002, p. 1, as amended - Dz. Official Journal of the EU, Polish special edition, chapter 19, vol. 6, page 3, as amended), hereinafter referred to as "Regulation No. 1030/2002", with the annotation "ICT", issued by another Member State of the European Union than the one in which the foreigner exercises this right.

It should be mentioned that short-term mobility means the use of mobility for a period of up to 90 days in any period of 180 days in any Member State of the European Union. On the other hand, long-term mobility means using mobility for a period exceeding 90 days in a given Member State of the European Union (cf. Article 3 (7b) and (7c) of the Act on foreigners).

The condition for a foreigner to use short-term mobility on the territory of the Republic of Poland is the receipt by the Head of the Office of a notification from the host unit based in another Member State of the European Union, which issued the foreigner with the residence permit referred to in art. 1 clause 2 lit. and Regulation No. 1030/2002, with the annotation "ICT", on the intention of the foreigner to use this mobility (cf. Article 139 n of the Act on foreigners)

In conclusion, it is worth recalling that from February 12, 2018, two types of temporary residence permits are in force: to perform work under the intra-corporate transfer and to use long-term mobility. The aforementioned permits will allow employers who have branches, capital groups located in different countries, to temporarily transfer management, specialists, interns for professional and training purposes within the same company.