Poland FocusThe Polish Government published on 11 January 2019 a first draft of the bill regulating terms of stay of UK nationals and their family members in Poland as a consequence of Brexit. Without this regulation UK nationals would automatically acquire a “third country national” status under the Polish immigration laws and their staying and working in Poland might become illegal pretty much overnight. Therefore, with the aim to ensure at least some minimum protections for UK nationals and their families, the bill provides for a period from 30 March 2019 to 31 March 2020 when their stay in Poland will be considered legal and they will retain their right to work without a work permit. They will have that interim period in which to apply, depending on their residency status on 29 March 2019, for a special Brexit temporary or permanent residence permit.

Who is covered?

According to the Polish Government, there are around 6000 UK nationals resident in Poland. The new law will apply to those UK nationals and members of their families who on 29 March 2019 have a right to reside (prawo pobytu) or permanently reside (prawo stałego pobytu) in Poland.

The bill defines a UK national as a person who has ‘national’ status in accordance with the Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland on the definition of the term “nationals” of 31 December 1982 and declaration No. 63 to the Lisbon Treaty. No changes to the definition of the family member status were proposed, so that still means someone who is a spouse of an EU national, a child of an EU national or their spouse under the age of 21 and dependent on the EU national or his/her spouse, or (grand)parent of the EU national or his/her spouse, if dependent on the EU national or his/her spouse.

How do you prove your right to reside as at 29 March 2019?

The bill offers two ways of showing that you have a right to reside or permanently reside in Poland on the 29 March 2019. As a primary measure there is a presumption introduced for those who have a valid registration certificate of their stay in Poland issued under the freedom of movement principle or a valid residence card as family members of an EU national on 29 March 2019.

In such case, as a general rule and upon request, a temporary residence permit will be granted as a one-off measure for a period of 3 years. And if the UK national and his/her family members have permanent resident status under the freedom of movement principle, they may apply for permanent residence status in Poland.

If UK nationals and their family members do not have such documents, they will need to prove that they met conditions under the freedom of movement principle as part of the application for the residence permit.

When can you apply?

All applications need to be made personally in the period from 30 March 2019 to 31 March 2020. Any applications made after that date will be disregarded and the applicant and family will be likely to be required to leave the country or follow the same work and residence permit application process as any third country national.

Right to work

UK nationals and their family members 1) whose residence in Poland is considered legal under the interim measures until 31 March 2020, or 2) whose residence in Poland is considered legal during the period of considering their application for residence permit if that goes beyond 31 March 2020 or 3) who were granted a Brexit residence permit will be entitled to work in Poland on the same rules as Polish nationals. Holders of permanent residence permits in Poland are generally authorised to work without a need to obtain a work permit. UK nationals moving to work in Poland after 29 March 2019 will be treated as “third country nationals” and their nationality and former EU national status will not provide them with any priority or preference in that process.

Employers have no direct obligations as regards applying for Brexit temporary or permanent residence permit and they are not a party to the permit application process. While there is no legal responsibility imposed on them to advise or insist on timely applications by UK nationals, it is in their best interest to keep those employees informed as Brexit temporary and permanent residence proceedings offer a quicker and easier path to secure the right to work and reside in Poland than the regular process for other third country nationals. Employers should make sure that when the grace period expires on 31 March 2020, they have all the necessary documents in place to prove that their UK nationals can reside and work in Poland.