Can we count on important and significant facilitation measures coming into force in 2023 for foreigners, of whom there are far more in Poland than at least a year ago at the same time? There are many indications that this is the case. For major changes are being prepared in the procedures for foreigners to apply for legalisation of their stay and work in Poland. I hope that the saying "It was supposed to be better, but it turned out as usual". will not work and all those with a keen interest in immigration issues, in particular the foreign applicants themselves, will be able to breathe a sigh of relief.
The administrative procedures for applying for a residence and work permit are long overdue for an overhaul. Or rather - to tear them down and create them from scratch. What happens in front of the Provincial Offices is beyond all imagination, and the situation of waiting for months for a letter from the office creates an easy morsel for unreliable intermediaries promising to expedite the issuing of a permit for a fee.
However, better times are coming! From January 2023, the Law on Employment of Foreigners. The bill of 13.09.2022, which is proposed by the Minister of Family and Social Policy, is currently in the opinion stage. So what facilitation for foreigners in Poland is 2023 supposed to bring? Let's find out!
If you are interested in this topic, read also: Legalisation of residence and work of foreigners in Poland - latest changes and simplifications
Act on the employment of foreigners - key changes
This is a completely new law that has regulate the employment of foreigners. Today, this issue is regulated by the Act of 20 April 2004 on employment promotion and labour market institutions. The new phe draft also aims to implement Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and residence of third-country nationals for the purposes of employment as seasonal workers into the national legal order.
It is to be expected that the changes introduced will be fundamental. This is because they will significantly improve the functioning of the system for admitting foreigners to the Polish labour market. In particular those who perform work on the basis of the permits.
The most important changes to the employment of foreign nationals in 2023 are:
- Change of name of 'statement on entrusting work to a foreigner' to "declaration of employment of a foreigner";
- Registration statements will be registered by the district governor - and not the district employment offices as before;
- Work permits will still issued by the provincial governor;
- Follow fully electronic procedures related to obtaining a work permit for foreigners - through an ICT system, the functionality of which is to be extended;
- Seasonal work remains for 9 months;
- Abolition of the so-called labour market test when applying for a work permit (Polish unemployed persons will have priority in employment over foreigners);
- Elimination of the separate procedure for extending the work permitwhich is currently issued when an employer continues to entrust a foreigner with work in the same position (i.e. it will be possible to continue employment in the same position until a new permit is issued);
- Introduction of an obligatory ground for refusal of authorisation for work when the employer does not pay compulsory social security contributions or advances on income tax. Until now, this premise has been optional.
Unfortunately, the analysis of the project shows that the Provincial Offices will continue to process work permit applications. This does not inspire optimism, as they are overloaded with work and do not have adequate staffing. Perhaps, however, the expanded system of verifying applications will speed up the procedure for issuing permits.
What else is to be expected?
Also new in the bill is possibility to increase working hours or the number of working hours per week or month. It will then be a prerequisite that proportionate salary increase without the need to amend or obtain a new work permit (Article 18(1)(4) of the draft Act). Unlike the current provisions of the Act of 20 April 2004 on employment promotion and labour market institutions, regulation covers not only cases where work is performed under a contract of employment. It will also apply to the performance of work on the basis of civil law contract (i.e. contracts of mandate or work).
The law also provides for increase in penalties for illegal employment of foreigners. The maximum fine will still be £30,000, but for individuals it will be PLN 500 per person. Until now, uncovering illegal employment was equivalent to a fine of PLN 2-3 000. Now the labour inspector will have no choice - he will determine the amount of the fine according to the number of illegally employed foreigners. Thus, in the case of one foreigner, the fine will be PLN 500, in the case of two foreigners - PLN 1 000, in the case of three foreigners - PLN 1 500, and so on. Article 76(9) of the draft introduces provisions which indicate that the fine should be imposed in proportion to the number of foreigners who were illegally employed, in the amount not lower than PLN 500 per one foreigner.
Facilitating the employment of foreign nationals in 2023. Summary
Although it is a draft for the time being and there is still a long way to go before it is signed by the President of Poland, it is expected that the law will enter into force very soon - due to the need to quickly implement the so-called milestones included in the National Reconstruction Plan.
We will not fail to inform you about the entry into force of the law in our next post.
