Changes to the Act on Foreigners

Changes to the Act on Foreigners
Poland is amending provisions relating to foreigners. The new provisions come into force on May 1, 2014. Many rules and procedures for legalization of stay of foreigners have been simplified.

The new law provides for new types of residence permits, requested by the foreigner as well as changes in the rules of obtaining them.

The Act provides for favourable provisions for foreigners of Polish origin, as well as for the children of foreigners with a regulated legal situation in Poland. The holders of the Pole’s Card (Karta Polaka) who intend to settle permanently in Poland may request the right of permanent residence.

The procedures commenced before the entry into force of the new provisions will be carried out according to the previous rules. Residence permits, however, will be issued in accordance with the terminology used in the new Act.

Temporary residence

For the moment, the new Act provides for the opportunity to legalize one’s stay for a fixed term (the residence permit for a specified period of time used so far will be now replaced by the temporary residence permit). The temporary residence permit may be issued for the maximum period of three years, which is longer than before.

The most important changes concern the legalization of stay to work for foreigners in Poland. A standardized permit (for residence and work) was introduced and a relevant application may be filed by a foreigner. When the work permit for a foreigner is required by the employer, the previous solution will still be available, especially when the permit is a document justifying the arrival of a foreigner in Poland on the basis of a visa. In situations where a foreigner is already present in Poland, the procedure for obtaining a residence permit and a work permit should be uniform and therefore shorter.

For students, the Act introduced beneficial solutions for duration of the residence permit due to studies. It will be issued for a period of 15 months. During their studies, students can later obtain a residence permit for the maximum period of three years. Under the new Act, graduates of Polish universities also have the possibility of obtaining an annual residence permit if they want to find work in Poland. The law also allows foreigners to obtain a residence permit when preparing for studies (preparatory courses in Polish).

Those who wish to legalize the stay due to business activity now have clearer requirements to obtain a residence permit. The Act sets out the economic conditions that a company must meet so that its owner could get a residence permit in Poland. As before, economic activity should be beneficial for the Polish economy. The new Act sets out specific requirements.

The law introduces the possibility of obtaining temporary residence because of the need to respect the right to family life.

The situation of mixed marriages also changes. An application for legalization of stay can only be filed in Poland (possibility of requesting a residence permit via consulates is no longer available).

Victims of trafficking in human beings now have more beneficial opportunities for legalization of stay, as the Act increases the time for which this group of people can obtain a residence permit, even while the decision on cooperation with law enforcement authorities is being reviewed. The condition for legalization of stay is to engage in cooperation with the police authorities, in order to punish the perpetrators of the offence of trafficking humans.

The provisions for temporary stay are governed by Section V of the Act (Articles 98-194).

Permanent residence

The new Act on foreigners has renamed the indefinite residence permit for foreigners. Before, it was called “permit to settle” and now is named permanent residence permit. The new provisions also provide for the possibility of requesting a residence permit for long-term EU residents as before.

The foreigner may request an indefinite stay only after several years of residing in Poland. The necessary duration of stay depends on the legal status of the foreigner in this period.

The Act introduced the possibility of obtaining a permanent residence permit for persons of Polish origin and Pole’s Card holders, who wish to settle in Poland.

In accordance with the new provisions, the permanent residence permit may also be granted to the children of parents with a long-term EU resident permit, permanent residence permit, as well as victims of trafficking in human beings.

The right to apply for long-term EU residence is granted to persons enjoying international protection in Poland or those with refugee status and subsidiary protection.

The provisions relating to the possibility of withdrawal of a permanent residence card will also be modified.

Information on permanent residence in Poland is contained in section VI of the Act (Article 195-225).

Tolerated and humanitarian stay

There are amendments to the provisions concerning legalization of stay of foreigners in cases where obliging them to return may result in a violation of human rights, would infringe the right to family life or privacy or infringe the rights of the child. This type of residence permit may not be requested by a foreigner. The procedures in these cases are conducted by the Border Guard (under the return obligation procedure) and not by Voivodeship Offices.

The law provides for two forms of legalization of stay in such situations:

residence permit for humanitarian reasons,

tolerated stay.

This type of permit is granted to a foreigner when the fact of forcing him/her to leave Poland would pose a risk to his/her life or safety, or when requiring the foreigner to return could violate his/her right to family, private life or the rights of the child.

A permit for tolerated stay can be issued to foreigners when it is not possible to oblige the foreigner to return for other reasons.

The provisions concerning the forms of stay above are laid down in Section VIII of the Act (Chapter 3, articles 349-360)

Other important changes:

Any person who submits a request on legalization of stay in Poland will be required to submit their fingerprints (with the exception of children of less than six years of age). As a result, the application should be lodged in person.

The foreigner no longer has the obligation to append a document confirming his/her right to a flat. At the time of filing the application, it is enough to prove that the foreigner has a guaranteed place of residence.

The foreigner has the opportunity to submit a new application on a residence permit before the last day of his/her legal stay in Poland. The obligation to submit a request no later than 45 days before the expiry of the validity of a residence card or visa has been abolished.

If to the foreigner wishes to renew a visa, this is possible until the last day of legal residence (instead of 3 days before the end of the stay as was the case before).

The return procedure for foreigners from Poland has also changed. The two decisions that were mandatory before (departure or expulsion from Poland) have now been replaced by a single decision obliging the foreigner to return. This decision will be issued by the Border Guard (instead of the Voivode).

On refusal of legalization of his/her stay, of granting protection or on withdrawal of a residence permit or protection, the foreigner has 30 days to leave Poland legally (without any negative consequences normally associated with illegal residence).