Current law concerning the employment of foreigners in Poland divides foreigners into citizens of the Member States and other countries, imposing different means of treatment of each of these groups with respect to their provision of work. Various procedures shall apply for the hiring of a foreign correspondent, an academic teacher, or e.g. the general director of a representative office in Poland.
The criteria used in respect to EU citizens which defines the scope of freedom in providing work within Poland is citizenship, i.e. affiliation with a given country. On the other hand, generic criteria are used with respect to citizens of other countries. This is because policies regarding employment in various professions vary. In the case of certain professions, the securing of a permit is not required at all. On the other hand, simplified procedures consisting of the omission of certain requirements during proceedings associated with the securing of a permit, are applied.
Recent changes regarding the principles of employment of foreigners in Poland strive towards opening up the labour market for foreigners, with such being demonstrated above all in the expansion of the group of persons that may perform work without a permit as well as the simplification of procedures associated with the securing of appropriate permits.
Of significant importance in respect to the simplification of procedures associated with the employment of foreigners are changes that have come into effect effective 1 February 2009 and consisting of i.e. repealing of two-stage procedures for the securing of a work permit, i.e. repealing the obligation to obtain a promise for the issuance of a work permit as well as a limit on the number of required documents that are examined by State administrative bodies during the course of such procedures.
1. Legal grounds
The fundamental act regulating principles associated with the employment of foreigners within the Republic of Poland is the Employment Promotion and Labour Market Institutions Act of 20 April 2004 (unified text in Journal of Laws of 2008, No. 69 item 415 as amended; the “Act”).
2. Fundamental definitions
A foreigner entitled to perform work in the Republic of Poland, as defined in the Act, is considered to be a person not being a Polish national and meeting premises laid out in Article 87 par. 1 of the Act.
The performance of work by a foreigner, on the other hand, is considered to be the hiring, the performing of other paid for work or the holding of a function in the management boards of legal entities that have been entered into the commercial register pursuant to the provisions of the National Court Register or are commercial (capital) companies being organised.
3. Principles concerning the performance of work in the Republic of Poland by foreigners
Pursuant to the provisions of Article 87 Par. 1 of the Act, a foreigner is entitled to perform work in the Republic of Poland if at least one of the following criteria is met:
- holds the status of a refugee granted in the Republic of Poland;
- has been granted supplementary protection in the Republic of Poland;
- holds a permit allowing for settlement in the Republic of Poland;
- holds a long-term European Union resident permit in the Republic of Poland;
- holds approval for tolerated stay in the Republic of Poland;
- is taking advantage of temporary protection in the Republic of Poland;
- is the citizen of a Member State;
- is the citizen of a European Economic Area country not being a member of the European Union;
- is the citizen of a country not being a party to the European Economic Area agreement and entitled to take benefit of freedom of movement on the basis of an agreement between such country and the European Community and its Member States;
- is a family member of a foreigner referred to in items 7-9 or is the descendent of the spouse of such foreigner, aged 21 or less or being dependent on such a foreigner or his/her spouse or is the ascendant of such a foreigner or his/her spouse and is dependent on such a foreigner or his/her spouse;
- is a person referred to in Article 19 pars. 2-3 of the Act of 14th July 2006 concerning the entry into the Republic of Poland, the stay and exit from the territory of the Republic of Poland by citizens of the Member States as well as their family members (Journal of Law No. 144 item 1043, of 2007 No. 120 item 818 and of 2008 No. 216 item 1367);
- holds a work and residency permit in the Republic of Poland:
- on the basis of a visa with the exception of a visa referred to in Article 26 pars. 1 item 1, 20, 25 and 26 of the Foreigners Act of 13th June 2003, or
- on the basis of Article 61 Par. 3 or Article 71a par. 3 of the Foreigners Act of 13th June 2003 if, immediately prior to the filing of such an application, such person was entitled to perform work in the Republic of Poland, or
- on the basis of a fixed-term residency permit with the exception of a permit issued in conjunction with circumstances referred to in Article 53a Par. 2 of the Foreigners Act of 13th June 2003, or
- on the basis of a visa issued by another Schengen country, or
- on the basis of a residency document issued by another Schengen country, or
- on the basis of visa-less travel if the provisions of the agreement concerning visa-less travel foresee the performance of work by foreigners.
4. Grounds for issuing work permits to foreigners
Principles and manner for issuing work permits to foreigners are regulated by the Act and its executive regulations.
Pursuant to the Act, a work permit is required if the foreigner:
- performs work in the Republic of Poland on the basis of a contract with an entity whose registered office, place of residence or branch, plant or other forms of organised activities are found within the Republic of Poland (type A permit);
- fills the function of a member of the Management Board of a legal entity entered into the commercial register or being a commercial company being organised within the Republic of Poland and for a period of no more than 6 months in total during a subsequent 12-month period (type B permit);
- performs work for a foreign employer and has been sent to the Republic of Poland for a period exceeding 30 days during a calendar year to work in a branch office or plant of the foreign entity, its affiliated entity, or an entity tied by a long-term cooperation agreement with the foreign employer (type C permit);
- performs work for a foreign employer not having a branch office, plant, or other organised form of business activities within the Republic of Poland and has been sent to Poland in order to perform services of a temporary or ad hoc nature (export service) (type D permit);
- performs work for a foreign employer and has been sent to the Republic of Poland for a period not exceeding 3 months within a subsequent 6-month period for purposes other than those indicated in item 2-4 above (type E permit).
5. Terms and conditions for the issuance of a work permit
An employer filing for the issuance of a work permit shall:
- in the case of a type A work permit – ensure remuneration for the foreigner that shall not be lower than that paid to employees carrying out similar work or working at a similar position;
- in the case of type C, D and E type work permits – ensure remuneration for the foreigner that shall not be more than 30% lower than the average monthly salary in the given province [województwo];
- in the case of type B work permit – demonstrate an appropriate level of revenues in the tax year preceding the submission of the application as well as the appropriate level of employment;
- in the case of type A work permits – carrying out a so-called market demand test, i.e. obtain information from the county administrator [starosta] having jurisdiction over the registered office or place of residence of the entity wishing to hire a foreigner as to the inability to meet staffing requirements on the basis of the register of unemployed or seeking work registers or of an unsuccessful outcome of a recruitment process carried out for the employer. The above requirement means that the employer must strive towards maximum use of local resources by seeking out employees among Polish nationals.
The regional governor shall refuse to issue a work permit if the employer does not comply with requirements related to the presentation of the above information or other specific requirements foreseen for the obtainment of a work permit. Furthermore, an employer that has provided false testimony or concealed the truth, has filed false documents, or is attempting to hire a foreigner whose qualifications do not reflect the nature of work being given to him/her in the case of a regulated profession, shall also be refused a work permit. Additionally, an employer that has been found guilty of the illegal employment of foreigners and has once again been found guilty of a similar offense within a two-year period, cannot count on obtaining a permit. Also, foreigners whose stay in Poland is not tolerated cannot count on obtaining a work permit within the Republic of Poland.
6. Simplified procedures for the issuance of work permits
The issuance of a work permit with respect to certain groups of foreigners does not require the carrying out of proceedings associated with the requirement to first seek out employees from among the local unemployed workforce or to meet other detailed terms associated with the issuance of such permits. The list of persons that shall obtain a work permit even if candidates for the given post may be found from among the local workforce is defined in the Act as well as the Regulation of the Minister of Labour and Social Policies dated 29 January 2009 regarding defining circumstances in which a work permit is issued to a foreigner regardless of detailed terms defined for the issuance of a work permit to a foreigner.
These include i.e.:
- the family members of diplomatic and international organisation personnel as well as their private house servants,
- those authorised on the basis of legal acts issued by authorities appointed pursuant to the Agreement establishing an Association between the European Economic Community and Turkey.
Furthermore, the following persons are exempt from having to obtain information from the county administrator [starosta] concerning the situation on the labour market:
- persons authorised to represent a foreign entrepreneur in his branch or representative office;
- persons being nationals of the Republic of Belorussia, the Republic of Georgia, the Republic of Moldavia, the Federation of Russia or Ukraine and carrying out nursing-care work or working as household servants for natural persons;
- persons being nationals of the Republic of Belorussia, the Republic of Georgia, the Republic of Moldavia, the Federation of Russia or Ukraine who, in the period directly preceding the filing of an application for the issuance of a work permit, have – for a period of no less than three months – carried out work for the same entity on the basis of a representation of intent to entrust such a person with the performance of work and registered with the appropriate county [powiat] labour office having jurisdiction over the registered office or place of residence of the entity (person) submitting such a representation;
- sports trainers or sportsmen;
- doctors and dental doctors undergoing training or carrying out a specialisation program.
7. Term of a work permit
A work permit is issued for a fixed period of time, however no more than 3 years and may be extended.
In the case of foreigners:
- holding a position in the Management Board of a legal entity that, as at the date of submission of the application, employed more than 25 persons, a work permit may be issued for a period of no more than 5 years,
- that have been sent out by a foreign employer to carry out the export of services, the regional governor [wojewoda] shall issue the work permit for the term of the assignment.
A work permit shall remain valid if:
- the foreigner is entrusted, for a period not exceeding 30 days in a calendar year, to carry out work other than that defined in the work permit or is assigned to a different post,
- the registered office or place of residence, the name or legal form of the hiring entity changes,
- the employer, or its part thereof, is taken over by another employer,
- the place of employment, or its part thereof, is taken over by another employer,
- the person designated by the foreign employer to represent him before the regional governor [wojewoda] is changed, however under the condition that the regional government that has issued the permit is immediately notified of such a change.
Furthermore, a work permit may remain valid if:
- the foreigner, in agreement with the entity hiring him/her to work in the Republic of Poland, has not commenced work within three months of the initial date of validity of the work permit,
- the foreigner, in agreement with the entity hiring him/her to work in the Republic of Poland, has suspended the performance of such work for a period exceeding three months,
if the cause of such delay or the suspension the performance of work is justified and the entity hiring the foreigner to carry out such work has informed the regional government that issued such a permit in writing of such a situation.
8. Exemption from the obligation to obtain a work permit
Provisions concerning the hiring of foreigners in the Republic of Poland in certain cases foresee an exemption from the obligation to obtain a work permit. Such, pursuant to the provisions of the Act, related to i.e. foreigners:
- that are employed by employers having their registered office in one of the Member States or in a European Economic Area country not being a Member State that has been temporarily sent to Poland by their employer to provide services,
- who hold a fixed-term residency permit in conjunction with an intent to carry out work or to conduct commercial activities,
- who hold a fixed-term residency permit in conjunction with an intent to commence or continue their studies or vocational education,
- hold a fixed-term residency permit for reuniting with family,
- hold a valid Poles Card [Karta Polaka].
Additionally, the regulation of the Minister of Labour and Social Policies of 30th August 2006 concerning the carrying out of work by foreigners without the need to obtain a work permit lists categories of persons that an employer, due to the specific nature of tasks being carried out by them or their status, may hire without the need to obtain a work permit to work in Poland for such persons. These are, i.e.:
- persons who organise trainings,
- participate in professional internships or supervise the performance of European Union programs or other international aid programs,
- teachers of foreign languages as well as persons leading classes in a foreign language and acting under contracts and international agreements,
- members of armed forces or of civilian staff who work in international military structures,
- permanent correspondents of foreign mass media,
- those giving occasional lectures, papers or presentations,
- athletes representing a Polish entity during the course of sports competitions,
- full-time students during the period July-September,/li>
- students, who perform professional internship work to which they have been referred,
- persons delegated to work in cultural institutions of foreign countries,
- citizens of the Republic of Belorussia, the Republic of Georgia, the Republic of Moldavia, the Federation of Russia or the Ukraine who work during a period not exceeding 6 months in 12 consecutive months on the basis of employer’s declaration on the intention to employ such nationals registered in the district employment agency competent for the place of residence or the registered office of the entity submitting such declaration.
The right to carry out work in the Republic of Poland by a foreigner requires that the foreigner, in addition to obtaining a work permit, must obtain an appropriate visa unless the foreigner stays in Poland is regulated by provisions regarding visa-less travel. The issue of granting a visa to foreigners is covered by the Aliens Act of 13th June 2003. Pursuant to the provisions of this act, a foreigner entering the territory of the Republic of Poland is issued a visa being:
- a Schengen visa, or
- a domestic.
A type “C” Schengen visa grants permission granted by a Schengen State for transit to another Schengen State or planned to stay in a Schengen State and including the performance of work for a period not exceeding three months in a given six-month period starting from the date of entry into a Schengen country.
A type “D” domestic visa is permission granted by a Polish authority for entry into and stay in the Republic of Poland or multiple entries into Poland for an aggregate period exceeding three months.
A Schengen visa or domestic visa may be issued, i.e. to allow the foreigner to carry out research activities, to conduct commercial activities, or to undertake work. Such a visa may be issued to a foreigner who intends to carry out work in the Republic of Poland and who presents a Polish work permit or a written statement from the employer confirming the intent to give work to the foreigner if the securing of a work permit is not required.
A visa for the performance of work is issued for the term of the stay indicated in the work permit or statement of the employer intending to give work to a foreigner, however, it may not exceed the period foreseen for the given type of visa starting from the date of the first border crossing into Poland in the case of a unified residence visa or, in the case of a domestic visa, more than one year during the validity of the visa.
A work visa is issued, or refusal to grant such is given, by the consul in the country of permanent residence of the foreigner or, if the foreigner is already residing legally in a Member State or EFTA country, by the consul having residence in such country. The decision of the consul regarding the issuance of a visa is final.
10. Employer obligations towards foreigners
The entity hiring a foreigner that requires a work permit is required to, i.e.:
- conclude an agreement with the foreigner in written form on terms and conditions defined in the application for the issuance of a work permit,
- present to the foreigner, prior to the signing of such an agreement, a translation of such into a language understood by the foreigner,
- present to the foreigner one copy of the work permit,
- inform the foreigner of actions being undertaken in conjunction with proceedings relating to the issuance or extension of a work permit as well as decisions concerning the issuance, refusal to issue or the revokement of such a permit, exercise due diligence in proceedings associated with the issuance of and extension of a work permit for the foreigner.
11. Consequences associated with the breach of provisions concerning the hiring of foreigners
Pursuant to the Act, the performance of work by a foreigner that does not hold a valid work permit or other document granting rights to reside in the Republic of Poland, or pursuant to which the performance of work in Poland is not permitted or the performance of work in circumstances requiring a work permit or the performance of work on terms and conditions or at a position different than that defined in the work permit, subject to the provisions of Article 88i, or without the conclusion of mandatory work contracts or civil-legal contracts, is considered to be illegal work being performed by a foreigner.