Does a foreigner – member of the board of a Polish foundation need a work permit?
From the very beginning of the Russian invasion of Ukraine, Poland has become one of the main areas of activity of NGOs from around the world. The geographical location and migration policy of Poland towards Ukrainian citizens made a huge number of NGOs decide to establish organizations, most often foundations, in this country. One of the problems faced by these organizations immediately after the decision to expand the area of their activity to Poland was the legalization of the work of foreign managers and specialists with knowledge and experience in the implementation of international aid projects financed by foreign governments.
Obligation to obtain a work permit
The Polish legislator, formulating the prohibition of work by foreigners on the territory of Poland, used the positive enumeration method when formulating the relevant provisions regulating this issue, i.e. it indicated cases in which a work permit is required.
According to Art. 88 of the Polish Act on Employment Promotion and Labor Market Institutions, a work permit is required if the foreigner:
- performs work on the territory of the Republic of Poland on the basis of an agreement with an entity which registered office or place of residence or branch, plant or other form of organized activity is located in the territory of the Republic of Poland;
- in connection with performing functions in the management board of a legal person entered in the register of entrepreneurs or being a capital company in organization, or in connection with conducting the affairs of a limited partnership or limited joint-stock partnership as a general partner, or in connection with granting a commercial proxy, stays on the territory of the Republic of Poland for a period exceeding a total of 6 months in the following 12 months;
- performs work for a foreign employer and is posted to the territory of the Republic of Poland for a period exceeding 30 days in a calendar year to a branch or plant of a foreign entity or a related with a foreign employer entity within the meaning of the Act of 26 July 1991 on personal income tax;
- performs work for a foreign employer that does not have a branch, plant or other form of organized activity in the territory of the Republic of Poland and is posted to the territory of the Republic of Poland in order to perform a service of a temporary and occasional nature (export service);
- performs work for a foreign employer and is delegated to the territory of the Republic of Poland for a period exceeding 30 days within the next 6 months for a purpose other than indicated in points 2-4,
- moreover, a seasonal work permit is required if a foreigner performs seasonal work in the territory of the Republic of Poland, i.e. in short, work in certain periods of the year and in certain areas of activity subject to seasonal conditions.
If the foreigner’s activity fully meets the criteria described in one of the above cases, then the entity entrusting him with the performance of work is obliged to obtain a work permit before such a foreigner actually starts work. It is also worth not forgetting the huge number of provisions contained in both the above-mentioned Act and other legal acts, including ordinances of competent ministers, which provisions indicate cases in which entrusting work is possible without a permit.
Implementation of international aid programs – without a work permit?
One of such exclusions from the obligation to obtain a work permit is contained in § 1 point 1 of the Regulation of the Minister of Labor and Social Policy of April 21, 2025 (item 588).
Pursuant to this provision, entrusting a foreigner with work in the territory of the Republic of Poland without the need to obtain a work permit is admissible in the case of foreigners:
- conducting trainings,
- participating in professional internships,
- performing an advisory, supervisory or
- requiring specific qualifications and skills
in programs implemented as part of the activities of the European Union or other international aid programs, also based on loans taken out by the Government of the Republic of Poland.
At first glance, this exclusion could be used by most NGOs that bring personnel from abroad to Poland to carry out projects financed by foreign governments aimed at helping Ukraine and its citizens. The literal wording of this provision shows that such projects are of an international nature, because they are financed by the governments of foreign countries on the territory of Poland and directed at Ukraine and its citizens.
However, the author of the regulation in question, the Minister of Labor and Social Policy, applies a restrictive interpretation in this case, claiming that an international program, within the meaning of this provision, is a program implemented under international agreements, i.e. agreements subject to international law, concluded with other countries or organizations international ones, including the International Bank for Reconstruction and Development or the European Bank for Reconstruction and Development.
In the opinion of the author of this text, such an interpretation of the Minister is incorrect, taking into account the wording and structure of the provision in question. Moreover, it does not take into account the current international situation, the immigration crisis and the traditionally very limited capacity of voivodship offices issuing work permits. Nevertheless, following the example of the Minister, consuls apply a similar interpretation to foreigners situation when issuing work visas abroad, demanding that applicants submit work permits. Therefore, even if a foreign specialist comes to Poland on the basis of a different type of visa or under visa-free travel, the legality of entrusting work to such a foreigner without a work permit may be questioned by labor inspectorates or Border Guard authorities.
Members of the board of non-commercial foundations
However, returning to the six cases when a work permit is required, given above. When interprete these provisions a contrario, we can conclude that in situations not covered by the situations described in the law a work permit is not required. The legitimacy of such a conclusion has been repeatedly confirmed by Polish courts, as well as in the legal literature.
In this way, it can be stated, among others, that a foundation with its registered office in Poland may entrust the performance of the function of a member of the management board to a foreigner in Poland, provided that:
- the foundation is not entered in the register of entrepreneurs, i.e. it does not conduct business activity,
- a member of the management board has been appointed and performs his/her functions on the basis of a resolution or decision of the competent body of the foundation, specified in its statute,
- the tasks of this member of the board of the foundation do not go beyond the scope of functions related to running the affairs of the foundation and its representation. In this case, a member of the management board may not additionally perform, for example, the function of financial director or HR manager,
- a member of the management board is not bound by any contract with the foundation the subject of which would be the performance of work, commission or work for the foundation,
- the member of the management board is not posted by his/her foreign employer to the territory of Poland.
It should also be remembered that if a foreigner – a member of the board of a Polish foundation wants to apply for a temporary residence permit in Poland in the future, it will be necessary to determine his/her remuneration for performing functions in the board on the basis of a resolution or decision of the competent authority of the foundation and in a situation where the statute of the foundation does not contain a ban on remunerating board members for their functions.
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