11 December 2020

Brexit – stay of UK nationals after the transition period

From the beginning of 2021, citizens of the United Kingdom and their family members living in Poland will be able to submit applications for new residence documents. These new documents will confirm the use of rights of the beneficiary of the Withdrawal Agreement when crossing the borders and during the stay in Poland.

End of the transition period

After the end of the transition period, from 1 January 2021, the United Kingdom citizens and their family members will, as a general rule, have the right to stay in Poland under the current conditions, if:

– they exercised the right of residence in Poland in accordance with EU law before the end of the transition period (this also applies to the United Kingdom citizens who entered Poland after the Brexit date and before the end of the transition period);

– they still live in Poland.

Continuity of stay immediately before and after the end of the transition period will be important for the acquisition and retention of the rights of the Withdrawal Agreement beneficiary.

Unconditional stays of up to 3 months (without the need to meet the conditions for stays exceeding 3 months) will also be taken into account. UK nationals will not have to reside in Poland on December 31, 2020 to have residence rights under the Withdrawal Agreement. Absences (breaks in the stay) which apply for the purpose of acquiring the right of permanent residence are allowed.[1] This rule will also apply to the assessment of the continuity of stay in Poland after the end of the transition period.

A declaratory system will be used for issuing residence documents to beneficiaries of the Withdrawal Agreement. The legal stay in Poland will not be conditioned by any obligation to obtain a new status or a residence document. However, persons eligible for the right of residence on this basis will be entitled to obtain (under the conditions set out in Directive 2004/38/EC) a residence document stating that it has been issued in accordance with the Withdrawal Agreement.

Taking into account practical considerations, it is recommended that all beneficiaries of the Withdrawal Agreement obtain new residence documents. Holding such documents will facilitate the use of the rights of the beneficiary of the Withdrawal Agreement when crossing the borders and during stay on the territory of Poland.

New residence documents

Residence permits[2] issued to the United Kingdom citizens and their family members until the end of the transition period will remain valid for the period for which they were issued, but no longer than until 31 December 2021.

Permanent residence permits (previously known as settlement permits) granted to the United Kingdom citizens under the Act on Foreigners also remain valid (indefinitely).

From 1 January 2021, beneficiaries of the Withdrawal Agreement will be able to submit applications for a new residence document to voivodeship offices (competent for the place of stay)[3]. The documents will contain an annotation referring to the Withdrawal Agreement: “Article 50 TEU, Article 18 para. 4 of the Withdrawal Agreement”.

Proceedings in matters of the right of residence or the right of permanent residence of British citizens and their family members initiated and not completed before the end of the transition period will continue after the end of this period. These proceedings will also result in issuing new documents to the beneficiaries of the Withdrawal Agreement. However, to obtain such documents, the applicant will have to provide their fingerprints.

After the end of the transition period, beneficiaries of the Withdrawal Agreement will be able to use the following residence documents entitling them to travel within the Schengen area without a visa:

I. issued before the end of the transition period (these documents will remain valid for the period for which they were issued, but not longer than until 31 December 2021):

– document confirming the right of permanent residence;

– residence card of a family member of an EU citizen;

– permanent residence card of a family member of an EU citizen.

II. issued after the end of the transition period:

– certificate of submission of an application for obtaining a residence document for the beneficiary of the Withdrawal Agreement, valid for 1 year;

– certificate of registration of residence (in case of a British citizen in the case of having the right of residence; it will not apply to a certificate of registration of residence of a frontier worker);

– document confirming the right of permanent residence (in case of a British citizen with the right of permanent residence);

– residence card (in case of a family member who is not a British citizen and holds a residence right);

– permanent residence card (in case of a family member who is not a British citizen and holds a permanent residence right).

Submission of applications

The application for obtaining a residence document (including an application for registration of stay) will have to be submitted in person, at the voivodeship office competent for the place of stay.

The following application forms for the given procedure dedicated to the beneficiaries of the Withdrawal Agreement will apply:

– application for obtaining a new residence document, containing an annotation referring to the Withdrawal Agreement (the “replacement” of the document held) (i.e. application for obtaining a new certificate of registration of residence, application for obtaining a new document confirming the right of permanent residence, application for obtaining a new residence card (for a family member who is not a United Kingdom citizen) and application for obtaining a new permanent residence card (for a family member who is not a United Kingdom citizen) – if the United Kingdom citizen or their family member has been provided with a residence  document for EU citizens or family members of EU citizens until the end of the transition period. The application must be submitted after 1 January 2021, by 31 December 2021 at the latest;

– application for registration of residence (and obtaining a certificate of registration of residence), application for obtaining a document confirming the right of permanent residence, application for obtaining a residence card (for a family member who is not a British citizen) and application for obtaining a permanent residence card (for a family member who is not a British citizen) – if the citizen of Great Britain or a member of their family has not been provided with the residence document for EU citizens or family members of EU citizens by the end of the transition period, or have not submitted an application concerning such documents by the end of the transition period. The application should be submitted as soon as possible after 1 January 2021.

Obtaining the above-mentioned residence documents will be free of charge.

The submission of the application will require the presence of a minor United Kingdom citizen or a member of their family, who is at least 6 years old by the date of application. It will also include taking fingerprints.

In particularly justified cases, including due to the health condition of a United Kingdom citizen or their family member, the requirement to appear in person may be waived.

In the course of procedures for obtaining residence documents for beneficiaries of the Withdrawal Agreement, starting from 1 January 2021, a certificate of submission of the application will be issued with a validity of 1 year and the possibility of obtaining another such certificate. Certificates will be issued for applications submitted by 31 December 2021.

It should also be remembered that, similarly to the rules applicable to EU citizens and their family members:

– a citizen of the United Kingdom who has not registered their stay or has not submitted an application in this matter by the end of the transition period should submit an application no later than on the day following the lapse of 3 months from the date of entry into the territory of Poland;

– a family member not being a citizen of the United Kingdom, who has not obtained a residence card of an EU citizen’s family member or has not submitted an application in this matter by the end of the transition period, should also submit an application no later than on the day following the lapse of 3 months from the date of entry into the territory of Poland;

– a family member not being a citizen of the United Kingdom, who has acquired the right of permanent residence, but has not obtained a permanent residence card of an EU citizen’s family member or has not submitted an application in this matter by the end of the transitional period, is obliged to apply for a permanent residence card.

Failure to comply with these obligations may result in the imposition of a fine.

Who is entitled to the right of residence?

The right of residence or the right of permanent residence of the beneficiaries of the Withdrawal Agreement on the territory of Poland will result directly from the Withdrawal Agreement and will also be regulated in Polish legislation.

Residence documents issued before the end of the transition period may constitute a significant proof of being a beneficiary of the Withdrawal Agreement, i.e. of having the right of residence or the right of permanent residence on the territory of Poland before the end of the transition period. The certificate of registration of the stay of a European Union citizen is not constitutive in nature, but is treated as indicative evidence of having the right to stay on the territory of Poland. Therefore, a citizen of the United Kingdom who has not yet acquired the right of permanent residence, in order to secure their rights, should make sure that immediately before the end of the transition period they will have the right to stay on the territory of Poland in accordance with the rules applicable to citizens of the European Union.

A United Kingdom citizen is entitled to the right of residence for a period longer than 3 months if one of the following conditions is met[4]:

  1. such citizen is an employee (excluding posted work ) or a self-employed person working on the territory of Poland;
  2. such citizen has sufficient financial resources to support themselves and their family members on the territory of Poland, so as not to be a burden for social assistance, and has adequate health insurance[5];
  3. such citizen is studying or undergoing vocational training in Poland and: has sufficient financial resources to support themselves and their family members on the territory of Poland, so as not to be a burden for social assistance, and has appropriate health insurance (as above);
  4. such citizen is a spouse of a Polish citizen.

If a residence document is not obtained before the end of the transition period, it will be possible to prove that the person is a beneficiary of the Withdrawal Agreement with any other acceptable evidence confirming the right of residence or the right of permanent residence in Poland before the end of the transition period.

Unconditional stays of up to 3 months (without the need to meet the conditions for stays exceeding 3 months) will also be taken into account.

The rules of stay on the territory of Poland regarding citizens of the United Kingdom and their family members who are beneficiaries of the Withdrawal Agreement will be similar to those applicable to EU citizens and their family members, subject to certain modifications resulting from the Withdrawal Agreement. The right of permanent residence will, as a rule, apply after 5 years of uninterrupted residence. Periods of legal stay or work before and after the end of the transition period will be included in the required period entitling to acquire the right of permanent residence.

Frontier workers

United Kingdom citizens holding the status of frontier workers (Article 9 letter b) of the Withdrawal Agreement) who, before 31 December 2020, will be performing work or conducting other gainful activity on their own behalf and for their own account on the territory of Poland without being subject to registration of stay obligation, and after that date will continue to work or conduct such activity on the territory of the Republic of Poland as frontier worker without residing in Poland, will be obliged to register his/her stay by 31 December 2021.

As a result of registration of residence as a frontier worker, the United Kingdom citizen will obtain a residence registration certificate containing an annotation confirming the status of a frontier worker under the Withdrawal Agreement (“Article 50 TEU – frontier worker”). The document will have a declaratory character and will be free of charge. The right of a frontier worker to continue work or gainful activity on his/her own behalf and for his/her own account in the territory of Poland as a frontier worker will arise directly from the Withdrawal Agreement.

Applying for registration of stay as a frontier worker will be possible from 1 January 2021.

Failure to register the stay in the above-mentioned period may result in the imposition of a fine.

For the acquisition and retention of the rights of a frontier worker under the Withdrawal Agreement, it will be important to maintain the continuity of work or business activity in the territory of Poland immediately before and after the end of the transition period. It will also be possible to retain the status of worker, in accordance with Art. 7 sec. 3 lit. a), b), c) and d) of the Directive 2004/38/EC.

The certificate of registration of residence of a British frontier worker will not have a character of a residence permit/document. The certificate will confirm the right to continue work or gainful activity in Poland, i.e. in the country of work, as a frontier worker not residing in Poland (also for another employer or to start self-employment). It will entitle to visa-free entry to the territory of Poland on the basis of the Withdrawal Agreement, but not to travel within the Schengen area without a visa.

Posted workers

United Kingdom citizens working on the territory of Poland until December 31, 2020 as posted workers under the freedom to provide services within the European Union pursuant to Art. 56 TFEU are not covered by the Withdrawal Agreement. They will not have any rights under the Withdrawal Agreement to remain in the host country after the end of the transition period.

Based on the provisions of Polish national law, which is to enter into force on January 1, 2021 these persons will be able to submit from that date an application for a special temporary residence permit pursuant to Art. 186 paragraph 1 point 8 of the Act of 12 December 2013 on foreigners (Journal of Laws of 2020, item 35, as amended), granted for a period of validity of 5 years, with the possibility of obtaining a permanent residence permit on a special legal basis in the future. An application for granting the temporary residence permit for British posted workers may be submitted no later than by 31 December 2021. Regular application form for temporary residence permit will be used.

The above-mentioned residence permits as well as residence cards (first residence card in case of permanent residence permit) will be free of charge.

From the date of entry into force of these regulations until December 31, 2021 the stay of such posted workers on the territory of Poland will be considered legal. They will also be exempt from the obligation to have a work permit during this legal stay, as well as after granting a special temporary residence permit.

Extended family members and persons leading family life with UK nationals within the meaning of the European Convention on Human Rights (Article 10 (2-4) of the Withdrawal Agreement)

Persons covered by Art. 3 sec. 2 lit. a) and b) of Directive 2004/38/EC obtain a temporary residence permit in Poland referred to in Art. 160 point 1 or 3 of the Act on foreigners. Permits granted to extended family members or persons leading family life with United Kingdom nationals within the meaning of the European Convention on Human Rights pursuant to Art. 160 point 1 or 3 of the Act on foreigners will remain valid after the end of the transition period.

In order to obtain a residence card with an annotation referring to the Withdrawal Agreement, it will be possible to submit an application for granting the temporary residence permit under the new legal basis of Article 160 points 4, 5 or 6 of the Act on foreigners. Subsequent temporary residence permits will also be granted on the basis of the above-mentioned regulations.

Applications may be submitted from January 1, 2021 on the standard application form for a temporary residence permit. Temporary residence permits granted on the above-mentioned legal grounds will be free of charge. The fee for issuing a residence card will be PLN 50.

The rules of stay regarding the citizens of the United Kingdom who will come to Poland after 1 January 2021

The British citizens and their family members who are not beneficiaries of the Withdrawal Agreement will be subject to the general rules of entry and stay on the territory of Poland relating to third-country nationals.

Legal regulations

Detailed rules on the procedures related to the right of residence and the right of permanent residence in Poland for citizens of the United Kingdom of Great Britain and Northern Ireland and their family members who are beneficiaries of the Withdrawal Agreement, after the end of the transitional period, are included in the draft act amending the Act on entering the territory of the Republic of Poland, residence and departure from this territory of nationals of Member States of the European Union and their family members and certain other laws (currently in the Lower Chamber of Parliament No 798).

Read more:

Brexit


[1] The stay in the territory of the Republic of Poland is considered uninterrupted if the breaks in it did not exceed 6 months a year in total.

The stay on the territory of the Republic of Poland is not interrupted by leaving this territory for a longer period due to:

1) compulsory military service, or

2) important personal situation, in particular pregnancy, childbirth, illness, studies, vocational training, secondment, which requires stay outside this territory, provided that this period is not longer than 12 consecutive months.

The stay on the territory of the Republic of Poland interrupts the execution of the decision on expulsion of an EU citizen or a family member who is not an EU citizen.

[2] certificates of registration of EU citizen residence, documents confirming the right of permanent residence, residence cards of an EU citizen’s family member and permanent residence cards of an EU citizen’s family member

[3] issued in accordance with Regulation 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals, as amended by Regulation 2017/1954

[4] pursuant to Article 16 para. 1 of the Act of 14 July 2006 on entry into the territory of the Republic of Poland, stay and departure from this territory, of citizens of the Member States of the European Union and members of their families

[5]  is covered by universal health insurance or is a person entitled to healthcare services under the provisions on coordination within the meaning of Article 5 point 23 of the Act of 27 August 2004 on health care services financed from public funds (Journal of Laws of 2018, item 1510, as amended) or has private health insurance, covering all expenses that may arise during a stay in Poland in connection with the need for medical assistance or hospital treatment, in which the insurer undertakes to cover the costs of health services provided to the insured directly to the entity providing such services on the basis of the invoice issued by this entity