Work permits and foreign nationals
"The freedom of movement for workers shall be secured within the Community."
- Article 39 (1, the EU Treaty
From May 1, 2004, the set of laws governing an EU national's right to work in Poland will, for lack of a better description, take a U-turn. Non-EU nationals, however, will continue to be subject to the existing regime of permit requirements and restrictions. The Sejm, despite news reports to the contrary, has adopted new legislation to align Poland's employment laws with the Acquis Communautaire, the body of EU law. In particular, Directive 68/360/EEC and Regulation 68/1612/EEC, which call for the abolition of restrictions on the movement and residency of workers throughout the Member States. To this end, the Sejm amended the Act on Employment and Counteracting Unemployment on April 26, 2002 and adopted the EU National Residency Act on July 27, 2002, both designed to align Polish and EU law.
What exactly will change? Presently, Polish immigration regulations do not differentiate between EU and non-EU nationals, requiring both groups to complete a number of formalities in order to reside and work legally in Poland. As a general rule, these formalities include the need to obtain both a work permit and residency permit. The procedure to obtain a work permit, as most human resource managers are no doubt aware, is, to say the least, cumbersome. A few exemptions allow for the employment of a foreign national without the need to obtain a work permit, but these exemptions are limited to certain specific situations; for example, to a foreign worker assigned by his parent company to work in Poland for no more than three months, or members of a company's management board employed in Poland no longer than 30 business days in a given year. In other words, 99 percent of all foreign nationals currently working in Poland need to obtain a work permit. Upon accession, this percentage should drop to less than 50 percent.
Currently, an employer must first apply for and obtain a "Promise" to obtain a work permit from the Voivod in which the employer operates. The foreign worker will then need to apply either for a visa at the Polish consulate in his country of origin or alternatively a temporary residency permit issued by the Voivod, provided that his stay in Poland will be longer than 3 months. This initial visa is valid for up to one year, while the temporary residence permit is valid for up to 2 years on a renewable basis. Once the visa or temporary residency permit has been obtained by a future employee, the employer has to reapply to the Voivod to obtain a final work permit. As a rule, the period of the work permit will mirror the length of the visa's or residency permit's period of validity. The Voivod, before issuing the actual work permit, will, subject to certain exemptions, first have to advertise the job in question to the local job force. Toward the end of the validity period of the work permit, the entire procedure must be repeated again to renew the work permit. To recap, under the current regulations, a foreign national desiring to relocate to Poland is subject to certain immigration restrictions and needs to obtain permission from the relevant government agencies in order to live and work in Poland. Additionally, the work permit is issued in two stages, the first being the "Promise" and the second being the actual work permit. And, in case the process isn't confusing enough, a foreign national will also need to provide evidence of his or her legal address while in Poland.
In principle, at least, as of May 1, 2004, an EU national will no longer be required to obtain a work permit in order to work in Poland. Does this mean that all residency and work permit formalities will no longer apply to EU nationals? Not exactly. EU nationals will now have the right to stay in Poland for up to 3 months for any purpose without having to go through any immigration formalities. For stays longer than 3 months, an EU national will still need to obtain a residency permit, but now such permits will be valid for five years at a time, as opposed to the current one or two year periods. However, no residency permit will be required for EU nationals employed in Poland who continue to maintain their legal residence in their home country and return at least once a week. A work permit (or Promise) will no longer be required, but the application to obtain a residency permit will need to include either a promise of employment or certificate of employment from the new employer. A residency permit will also include the family members of the EU national.
In line with Directive 64/221/EEC, a residency permit may only be refused (or withdrawn if issued already) on the basis of public policy, public security or public health concerns. The European Court of Justice, in landmark rulings in Rutili v. Ministre de l'Intérieur, case 36/75, and R v. Bouchereau, case 30/77, further limited a Member State's right to refuse to issue a residency permit to those instances in which the issuance of such a permit would create a "genuine and sufficient serious threat."
These changes will also apply to the nationals of certain non-EU Member States, such as Norway, Iceland and Liechtenstein, which, in addition to the Member States, make up the European Economic Area, where Community law is applied. Poland, as well as the nine other applicant countries, is expected to enter the EEA upon accession to the EU, and as such will be required to comply with the EEA Agreement. Foreign nationals from other countries who have signed bilateral treaties with the EU regarding the free movement of persons, such as Switzerland, may also benefit from similar agreements.
Now, as with most laws and treaties, the Treaty of Accession includes one big "if". If a current Member State imposes a restriction on the employment of Polish nationals, Poland reserves the right to impose similar restrictions on that Member State's nationals, until such time as the restrictions are lifted. Notice the word "current"? Future Member States may not apply any restrictions. According to Annex XII to the Treaty of Accession, current Member States may regulate access to their labor markets by Polish nationals for a period of from two to seven years following accession. To date, Austria and Germany have announced their intention to impose limited restrictions on Polish workers' access to their labor markets (as opposed to some other countries, such as the UK, Denmark, the Netherlands and Sweden). Time will tell if any other Member States decide to impose similar restrictions.
Andrzej Czopski is an attorney with Miller, Canfield, W. Babicki & Partners.
- Article 39 (1, the EU Treaty
From May 1, 2004, the set of laws governing an EU national's right to work in Poland will, for lack of a better description, take a U-turn. Non-EU nationals, however, will continue to be subject to the existing regime of permit requirements and restrictions. The Sejm, despite news reports to the contrary, has adopted new legislation to align Poland's employment laws with the Acquis Communautaire, the body of EU law. In particular, Directive 68/360/EEC and Regulation 68/1612/EEC, which call for the abolition of restrictions on the movement and residency of workers throughout the Member States. To this end, the Sejm amended the Act on Employment and Counteracting Unemployment on April 26, 2002 and adopted the EU National Residency Act on July 27, 2002, both designed to align Polish and EU law.
What exactly will change? Presently, Polish immigration regulations do not differentiate between EU and non-EU nationals, requiring both groups to complete a number of formalities in order to reside and work legally in Poland. As a general rule, these formalities include the need to obtain both a work permit and residency permit. The procedure to obtain a work permit, as most human resource managers are no doubt aware, is, to say the least, cumbersome. A few exemptions allow for the employment of a foreign national without the need to obtain a work permit, but these exemptions are limited to certain specific situations; for example, to a foreign worker assigned by his parent company to work in Poland for no more than three months, or members of a company's management board employed in Poland no longer than 30 business days in a given year. In other words, 99 percent of all foreign nationals currently working in Poland need to obtain a work permit. Upon accession, this percentage should drop to less than 50 percent.
Currently, an employer must first apply for and obtain a "Promise" to obtain a work permit from the Voivod in which the employer operates. The foreign worker will then need to apply either for a visa at the Polish consulate in his country of origin or alternatively a temporary residency permit issued by the Voivod, provided that his stay in Poland will be longer than 3 months. This initial visa is valid for up to one year, while the temporary residence permit is valid for up to 2 years on a renewable basis. Once the visa or temporary residency permit has been obtained by a future employee, the employer has to reapply to the Voivod to obtain a final work permit. As a rule, the period of the work permit will mirror the length of the visa's or residency permit's period of validity. The Voivod, before issuing the actual work permit, will, subject to certain exemptions, first have to advertise the job in question to the local job force. Toward the end of the validity period of the work permit, the entire procedure must be repeated again to renew the work permit. To recap, under the current regulations, a foreign national desiring to relocate to Poland is subject to certain immigration restrictions and needs to obtain permission from the relevant government agencies in order to live and work in Poland. Additionally, the work permit is issued in two stages, the first being the "Promise" and the second being the actual work permit. And, in case the process isn't confusing enough, a foreign national will also need to provide evidence of his or her legal address while in Poland.
In principle, at least, as of May 1, 2004, an EU national will no longer be required to obtain a work permit in order to work in Poland. Does this mean that all residency and work permit formalities will no longer apply to EU nationals? Not exactly. EU nationals will now have the right to stay in Poland for up to 3 months for any purpose without having to go through any immigration formalities. For stays longer than 3 months, an EU national will still need to obtain a residency permit, but now such permits will be valid for five years at a time, as opposed to the current one or two year periods. However, no residency permit will be required for EU nationals employed in Poland who continue to maintain their legal residence in their home country and return at least once a week. A work permit (or Promise) will no longer be required, but the application to obtain a residency permit will need to include either a promise of employment or certificate of employment from the new employer. A residency permit will also include the family members of the EU national.
In line with Directive 64/221/EEC, a residency permit may only be refused (or withdrawn if issued already) on the basis of public policy, public security or public health concerns. The European Court of Justice, in landmark rulings in Rutili v. Ministre de l'Intérieur, case 36/75, and R v. Bouchereau, case 30/77, further limited a Member State's right to refuse to issue a residency permit to those instances in which the issuance of such a permit would create a "genuine and sufficient serious threat."
These changes will also apply to the nationals of certain non-EU Member States, such as Norway, Iceland and Liechtenstein, which, in addition to the Member States, make up the European Economic Area, where Community law is applied. Poland, as well as the nine other applicant countries, is expected to enter the EEA upon accession to the EU, and as such will be required to comply with the EEA Agreement. Foreign nationals from other countries who have signed bilateral treaties with the EU regarding the free movement of persons, such as Switzerland, may also benefit from similar agreements.
Now, as with most laws and treaties, the Treaty of Accession includes one big "if". If a current Member State imposes a restriction on the employment of Polish nationals, Poland reserves the right to impose similar restrictions on that Member State's nationals, until such time as the restrictions are lifted. Notice the word "current"? Future Member States may not apply any restrictions. According to Annex XII to the Treaty of Accession, current Member States may regulate access to their labor markets by Polish nationals for a period of from two to seven years following accession. To date, Austria and Germany have announced their intention to impose limited restrictions on Polish workers' access to their labor markets (as opposed to some other countries, such as the UK, Denmark, the Netherlands and Sweden). Time will tell if any other Member States decide to impose similar restrictions.
Andrzej Czopski is an attorney with Miller, Canfield, W. Babicki & Partners.
