Until the end of the transition period, i.e. December 31, 2020 citizens of the United Kingdom and their family members may take up work in the territory of the Republic of Poland or pursue a self-employed gainful activity on the terms applicable to EU citizens and their family members.
After the transition period:
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, as a rule, provides for the retention of the existing rights of residence, as well as the right to work (except for British posted workers – see the information below) or to engage in self-employed gainful activity by citizens of the United Kingdom and their family members after the end of the transition period provided for in this Agreement, i.e. from 1 January 2021 in an EU Member State in which the beneficiaries of the Agreement will acquire the rights in accordance with the conditions set out therein.
It will concern the United Kingdom nationals who exercised the right to stay in the territory of Poland in accordance with the EU law before the end of the transition period, e.g. as employees, and who, after the end of the transition period will continue to reside in that territory under the conditions that concern EU citizens from other Member States.
A declaratory system will be used for issuing residence documents to beneficiaries of the Withdrawal Agreement in Poland. There will be no obligation to obtain a new status and a residence document as a condition of legal stay in Poland. However, persons eligible for the right of residence on this basis will be entitled to receive (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.
In accordance with Art. 24 of the Withdrawal Agreement, subject to the limitations set out in Article 45(3) and (4) TFEU, workers in the host State and frontier workers in the State or States of work shall enjoy the rights guaranteed by Article 45 TFEU and the rights granted by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ L 141, 27.5.2011, p. 1).
These rights include i.a.:
(a) the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;
(b) the right to take up and pursue an activity (work) in accordance with the rules applicable to the nationals of the host State or the State of work;
(c) the right to assistance afforded by the employment offices of the host State or the State of work as offered to own nationals;
(d) the right to equal treatment in respect of conditions of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or re‐employment;
In accordance with Art. 25 sec. 1 of the Withdrawal Agreement concerning the rights of self-employed persons, subject to the limitations set out in Articles 51 and 52 TFEU, self-employed persons in the host State and self- employed frontier workers in the State or States of work shall enjoy the rights guaranteed by Articles 49 and 55 TFEU.
These rights include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host State for its own nationals, as set out in Article 49 TFEU.
As stipulated by Art. 22 of the Agreement, in accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there.
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 (i.e. without residing in Poland), 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.
British citizens posted to Poland before the end of transition period under the freedom of provision of services, which under the EU law is regulated separately from the free movement of persons, are treated differently.
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 ex lege in accordance with Art. 21 of the Act on December 10, 2020 amending the Act on the entry into the territory of the Republic of Poland, residence and departure from this territory of citizens of the European Union Member States and their family members and certain other acts.
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 in accordance with Art. 87 sec. 2 point 1 of the Act of 20 April 2004 on employment promotion and labor market institutions.
Actual performance of work as a posted worker in Poland before the end of 2020 will be the condition for exempting these persons from work permit requirement.
The right to work without a work permit will enable British nationals posted to Poland until December 31, 2020 to continue their stay in Poland on similar basis as regards the beneficiaries of the Withdrawal Agreement and EU citizens exercising the freedom of movement in Poland in terms of access to the Polish labor market. This solution is intended to enable natural persons from the United Kingdom to continue living and working in Poland, as they were previously entitled to as EU citizens, but not to grant entities established in the United Kingdom the continuation of the right to provide services in Poland and to post workers for this purpose, which falls within the scope of the negotiated agreement on future relations between the European Union and Great Britain.
Other United Kingdom nationals
British citizens who are not covered by the Withdrawal Agreement or the above-mentioned regulations regarding British nationals posted to the territory of Poland until December 31, 2020, will be treated as third-country nationals in terms of access to the Polish labor market. As a rule, the requirement to obtain a work permit will apply.