I would like to ask for information on the following issue: in the case of a citizen of the United Kingdom who arrived in Poland and registered his/her stay before 31 January of 2020, if the reason for the citizen’s arrival is employment – in order to legalise his/her stay in the Republic of Poland should he/she submit an application for temporary residence (and work) in the transitory period of the United Kingdom’s exit from the EU, i.e. after 31 January 2020, or should the application be submitted after the transition period, i.e. after the United Kingdom formally leaves the EU (expected date 31/12/2020).

I would also like to ask for information whether the employer of the said person is required to initiate the procedure of obtaining a work permit in order for the person to be able to legally work in the Republic of Poland. Please also indicate the date on which the work permit application must be submitted, i.e. during or after the transition period. (that would pertain in particular to the event in which the citizen of the United Kingdom does not submit the application for temporary residence permit and work).

Please also provide information regarding the aforementioned question in the event if the citizen of the United Kingdom residing in the Republic of Poland registered his/her stay after 31 January 2020, but prior to the United Kingdom’s exit from the EU.

WITHDRAWAL AGREEMENT AND TRANSITION PERIOD

On 1 February 2020, the United Kingdom of Great Britain and Northern Ireland has withdrawn from the European Union and the European Atomic Energy Community

On 1 February 2020, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community entered into force. That date marks the beginning of the transition period which shall end on 31 December 2020.

During the transition period, the EU law applies to the United Kingdom as well as to its territory, while the references to the Member States in the applicable EU laws shall also include the United Kingdom unless the Agreement states otherwise.

The free movement of persons between the United Kingdom and the European Union in the transition period shall be maintained until the end of the transition period, i.e. until 31 December 2020.

In the light of the Polish legislation, the matters related to the transition period referred to in Article 126 of the Agreement on the withdrawal are governed by the Act of 19 July 2019 on the transition period referred to in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Dz.U. [Journal of Laws of the Republic of Poland] of 2019, item 1516).

In accordance with Article 1 of the aforementioned Act, during the transition period, referred to in Article 126 of the Agreement on withdrawal (Official  Journal of the European Union, C 144 I, 25 April 2019, p. 1), Wherever a Member State of the European Union or the European Atomic Energy Community is referred in separate provisions, the term shall also apply to the United Kingdom of Great Britain and Northern Ireland.

In accordance with the current general rules regarding the residence rights of the EU citizens and the members of their families on the territory of Poland, which shall also apply to the United Kingdom citizens and their families throughout the transition period – until the end of 2020, these citizens and their family members shall not be issued with residence permits and residence cards, provided under the Act of 12 December 2013 on Foreigners (Dz. U. [Polish Journal of Laws] of 2018, item 2094, as amended). The United Kingdom citizens, as well as EU citizens, are obliged to register their stay and obtain a certificate on registering an EU citizen. After five years of continuous residence, a resident of the United Kingdom has the right to apply for a document confirming the right of permanent residence. During the transition period, the family members can apply for the following documents issued under the existing rules: an EU citizens family member residence card and an EU citizen’s family member’s permanent residence card.

The rules governing the entry and stay of EU citizens and their family members on the territory of Poland are regulated by the Act of 14 July 2006 on the entry into, residence in and exit from the Republic of Poland of nationals of the European Union Member States and their family members (Dz. U. [Polish Journal of Laws] of 2019, item 293);, which implements the provisions of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Official Journal EU L 158, 28.12.2005, p. 77).

Right of residence up to 3 months

As a rule, EU citizens, as well as their family members who are not EU citizens, may reside in Poland for up to 3 months without the obligation to meet any conditions for residence except for holding a valid travel document. An EU citizen may hold another valid document confirming his/her identity and nationality. The EU citizens’ family members who are not EU citizens must hold a valid visa allowing entry to Poland unless they are exempt from this requirement.

Residence in excess of 3 months

In the event that the stay on the territory of the Republic of Poland lasts for over 3 months,  the EU citizen and their family member holding EU citizenship are obliged to register their stay, while the family member who is not an EU citizen is obliged to obtain a residence card for a family member of the EU citizen.

The voivode competent for the place of residence of the EU citizen is the competent body to register the stay of an EU citizen and to issue a residence card of an EU citizen’s family member.

In order to register the stay of an EU citizen (including his/her family members who are also EU citizens) and to obtain a residence card for an EU citizen’s family member, the EU citizen must meet the conditions of the right of residence in excess of 3 months.

An EU citizen has the right to residence in excess of three months if he/she meets the following conditions:

  1. he/she is an employee or a self-employed person on the territory of the Republic of Poland;
  2. he/she is in possession of financial resources allowing tosustain his/her and their family members’ stay on the territory of the Republic of Poland and not to encumber the social security and holds valid health insurance;
  3. he/she studies or undergoes vocational trainingin the Republic of Poland, and:
    is in possession of financial resources allowing to sustain his/her and their family members’ stay on the territory of the Republic of Poland and not to encumber the social security and holds valid health insurance,
  4. is the spouse of a Polish national.

Despite the obligation to register the stay of the EU citizen in the case of stays in the territory of Poland in excess of 3 months, the EU citizen’s right to remain on the territory of Poland for a period in excess of 3 months is granted on the basis on meeting the aforementioned criteria and not from registering the stay.  Failure to comply with the obligation to register the stay shall not mean that the EU citizen has no right to remain on the territory.

AFTER THE END OF THE TRANSITION PERIOD PROVIDED FOR IN THE WITHDRAWAL AGREEMENT

After the end of the transition period provided for in the Withdrawal Agreement, i.e. as of 1 January 2021, in principle, the United Kingdom Citizens and their family members shall be awarded the right of residence or permanent residence in Poland under the existing conditions, if:

  • they exercised their right of residence (or permanent right of residence) in Poland under EU law before the end of the transition period (this also applies to UK citizens who entered Poland after the Brexit date, i.e. after 31 January 2020 and before the end of the transition period);
  • they continue to live in Poland

The right of residence or permanent residence on the territory of Poland of the persons who are the beneficiaries of the Withdrawal Agreement shall arise directly from the Withdrawal Agreement, as well as the provisions of the Act of 14 July 2006 on the entry into, residence in and exit from the Republic of Poland of nationals of the European Union Member States and their family members by extending the term “EU citizen” used in the Act to also include nationals of the United Kingdom of Great Britain and Northern Ireland who are the beneficiaries of the Withdrawal Agreement and by extending the term “family member” to include the family members of United Kingdom citizens who are also the beneficiaries of the Withdrawal Agreement.

The rules governing the stay of the United Kingdom citizens and their families who are the beneficiaries of the Withdrawal Agreement shall be analogous to the rules applying to EU citizens and their families, including certain alterations arising from the Withdrawal Agreement.

In Poland, the system is planned to be declaratory in nature – there will be no obligation to obtain a new residence status and residence permit as an obligation for legal residence in Poland under the Withdrawal Agreement. However, persons who qualify for residence right under the Agreement shall be issued a residence document in accordance with the Directive 2004/38/WE. The document will contain a declaration that is was issued in accordance with the Agreement.

Considering however the practical reasons for the beneficiaries of the Withdrawal Agreement to exercise their rights, it is recommended for all beneficiaries of the Withdrawal Agreement to receive residence permits containing the annotation referring to the Agreement.

On the basis of the foregoing, it is currently planned that the United Kingdom citizens and their family members who are the beneficiaries of the Withdrawal Agreement who remain on the territory of Poland shall be issued the same types of documents that are currently issued to the EU citizens and their family members: certificate of registration of stay of a EU citizen (issued on the basis of submitting an application for registration of residence), residence card of an EU citizen’s family member, and after obtaining the right of permanent residence: a document certifying the right of permanent residence and a permanent residence card of an EU citizen’s family member. However, the documents will contain information stating that they were issued in accordance with the Withdrawal Agreement.

The citizens of the United Kingdom and their family members who are the beneficiaries of the Withdrawal Agreement and who remain on the territory of Poland, who received the residence permits issued to the EU citizens and their family members until the end of the transition period, shall have the right to submit an application to a voivode to exchange the documents for versions containing the information, that they have been issued in accordance with the Withdrawal Agreement. The residence documents issued prior to the expiry of the transition period shall serve as proof that their holders are the beneficiaries of the Withdrawal Agreement.

The applications for issuing residence permits containing the aforementioned information, or for replacing the current residence permits to documents containing the aforementioned annotation shall be accepted after 1 January 2021.

It is currently planned that the residence permits issued to the United Kingdom citizens and their family members before the end of the transition period  (certificate of registration of stay of a EU citizen, a document certifying the permanent residence right, residence card of a EU citizen’s family member and a permanent residence card of a EU citizen’s family member) shall expire on 1 January 2022.

The application for replacing the residence permits issued prior to the expiry of the transition period shall be therefore submitted until 1 January 2022.

After that date, the Beneficiaries of the Withdrawal Agreement who remain on the territory of Poland who did not make use of the opportunity to replace the document shall have the right to submit a new application for registering their stay and obtain a registration certificate, new application for a document confirming the right of permanent residence or a new application for issuing a residence card of an EU citizen’s family member or a permanent residence card of an EU citizen’s family member. These documents shall contain information regarding the Withdrawal Agreement.

A United Kingdom citizen who is a frontier worker as referred to in Article 9(b) of the Withdrawal Agreement, who will be working or conducting any other gainful activity before 31 December 2020 in his/her own name and for his/her own benefit without the obligation to register his/her residence (stays of up to 3 months) shall be obliged to register his/her residence in the event of continuing the aforementioned work or gainful activity as a frontier worker, i.e. without residing in the territory of Poland. Unlike the aforementioned rules regarding the UK citizens residing in Poland prior to the expiry of the transition period, e.g. employees, the status of a frontier worker on the basis of the Withdrawal Agreement shall be awarded after fulfilling the obligation of registering the stay as a frontier worker. The UK citizen shall thus obtain a certificate of registration of stay of an EU citizen, containing the information confirming holding the rights of a frontier worker on the basis of the Withdrawal Agreement. There is also a possibility that a time limit will be introduced for UK citizens to register their stay as a frontier worker on the basis of the Withdrawal Agreement. Applications for registration of stay as a frontier worker (and obtaining a residence permit for a frontier worker) shall be submitted beginning on 1 January 2021.

The matters related to the employment rights of foreigners (including EU citizens), including the obligation to hold a work permit falls within the competence of the Ministry of Family, Labour and Social Policy.