Immigration law

Difficulties in employing foreigners – the state ends the so-called “stay tourism”

Taking up employment in Poland by a foreigner requires legalization of both his stay and work. For this purpose, the foreigner should apply for a uniform permit for residence and work, when employees – specialists can apply for a temporary residence permit to work in a highly skilled job (also known as the Blue Card). In order to apply for one of the aforementioned permits, a person must already be present in Poland – applying from abroad is impossible. However, the document that allows you to enter the territory of our country is usually the visa (national or Schengen), which the foreigner obtains in the country of his origin. As a rule, if the entry of a foreigner to Poland is related to the intention to take up a job, i.e. takes place in order to submit an application for a residence and work permit, the appropriate type of visa, which should be obtained by a foreigner is a visa issued for the purpose of work. The problem, however, is that obtaining such a visa may take up to several months. Meanwhile, other types of visas (or Schengen visas) such as a tourist visa or a visa issued for the purpose of visits to family or friends are usually issued within 14 days. For this reason, a practice has arisen whereby foreigners get tourist visas or visas issued to visit family or friends that enable them to enter Poland in a short time and apply for a uniform or Blue Card permit. Until such a permit is obtained, foreigners either return to their home country or take up employment illegally.

Until now, filing an application for a uniform permit by a foreigner legally residing in Poland caused the necessity of considering such a request by the competent voivode as to the substance. Exceptions from the rule included only the situation in which the foreigner already had the basis of legal stay, which made the application pointless and the second case – when specific circumstances suggest that the stay of a foreigner in Poland is undesirable. The discussed amendment introduced two further premises for refusal to issue a uniform permit or a residence permit for highly qualified employees, leaving the application without recognition. The voivode will not start the examination of the application at all when the foreigner is staying in Poland on the basis of a tourist visa or when the foreigner is staying in Poland on the basis of a visa issued for the purpose of visiting family or friends.

However, so-called “stay tourism” is not in itself a desirable phenomenon, it should be noted that by eliminating this practice, the legislator did not offer in return any solution to improve the legalization of stay and work in Poland. In practice, the number of applications for residence and work permits increases, which translates into a long waiting time for their recognition. With the simultaneous equally long time of recognizing visa applications issued for the purpose of performing work, stay tourism has become the answer to the important needs of the labor market including the acceleration of procedures related to the employment of foreigners. After April 26, 2019, the waiting time for a foreign employee will be significantly extended, in countries where there is a high interest in working in Poland, such as India or Pakistan, even up to several months. The above, with staff limitations, the growing demand for foreign employees and the lack of solutions facilitating access to the Polish labor market, may seriously hinder the functioning of Polish entrepreneurs.

Author team leader DKP Legal Alicja Myśluk-Landowska
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