Important amendments to the Foreigners Act | In Principle

Facilitation of the process of obtaining an EU Blue Card in Poland, and digitalisation of the application procedure for granting residence permits, is provided for in a bill to amend the Foreigners Act.

A few days ago, a bill to amend the Foreigners Act appeared on the legislative agenda of the Polish Council of Ministers. Work on the bill is expected to be completed in the second quarter of 2024. It provides for changes in several important areas, including:

• Implementation into Polish law of Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (EU Blue Card)
• Electronic filing of applications for temporary residence permits, permanent residence permits and long-term EU resident permits, instead of filing these applications in paper form in person at the province office.

Changes pertaining to the EU Blue Card

The draft provides for several simplifications in the process of obtaining an EU Blue Card, including the reduction from 12 months to 6 months of the period for which a contract with a foreigner (for employment, fee-for-task, etc) must be submitted as evidence in the procedure.

In our view, one of the most important changes is granting to foreigners who have been issued a temporary residence permit for the purpose of working in a highly skilled occupation (EU Blue Card) the right to undertake and carry out economic activity in Poland on the same terms as Polish citizens. Certainly, this solution will increase the attractiveness of this basis for residence, although in such a case conducting a business will have to remain a secondary activity and not the foreigner’s main activity (the Blue Card will still not be obtainable solely for the purpose of running a business).

Another laudable change is abandoning the indication of the employer and terms and conditions of employment in the decisions granting these permits. The EU Blue Card is to become a type of general permit, which from the outset will not be linked to performance of a specific job, but will allow free change of employers, with the obligation to notify the province governor of the change of employer or loss of employment (currently, holders do not have this ability to change employers until they have held an EU Blue Card for two years). This will increase the attractiveness of this basis for residence in Poland.

The amendment would also introduce additional protections. The authority will have to notify the foreigner in advance of its intention to revoke his or her Blue Card. A foreigner against whom proceedings to withdraw the Blue Card have been initiated will be given at least three months to look for a new job if he or she has worked in Poland for less than two years, or for six months if they have resided in Poland for two years or more. During these periods, a decision revoking the permit could not be issued.

Digitalisation of proceedings

The proposed change in the method of applying for residence permits is particularly noteworthy. The amendment provides for mandatory electronic submission of applications. This is to apply to applications for temporary residence permits, permanent residence permits, and long-term EU resident permits.

A case-handling module (Moduł Obsługi Spraw or MOS) is to be used for submitting applications. The foreigner will apply for a residence permit using the templates provided in the MOS system. After completing the application and attaching all enclosures, the foreigner will need to sign the documents with a qualified electronic signature or a trusted profile. The applicant will receive an electronically generated acknowledgment of receipt, instead of a stamp in his or her passport confirming submission of the application. If the submitted documents receive a positive evaluation, the province governor will then summon the foreigner to appear in person to:

• Present a valid travel document or other proof of identity
• Submit fingerprints
• Submit a signature specimen.

If implemented as proposed, it is a step in the right direction. The possibility of applying electronically, and replacement of the stamp in the passport with a printout of confirmation from the system, is a good solution, as it will eliminate the arbitrariness with which stamps are currently issued by some offices in Poland.

But a significant hindrance in the new procedure for filing applications is the need to sign them with a qualified electronic signature or trusted profile. This seems like a gratuitous requirement, as the foreigner is expected to appear in person at a later stage in any event. A qualified electronic signature will be available to a small percentage of foreigners, while it may become difficult to obtain a trusted profile because it requires the applicant to hold a Polish personal identity number (PESEL).

There may be concern that the use of the MOS system will result in a very large influx of applications, and that this system may not perform well, particularly in the initial period. Currently, the platforms for registering visits to province offices, although less advanced than the proposed MOS system, are often overloaded by the large number of login attempts. This does not bode well for operation of a nationwide system for filing applications for residence permits.

Considering that to issue a decision it will be necessary to summon the foreigner to appear in person after initial approval of the application, it is hoped that the resources of the province offices used so far to accept applications submitted in person will be fully devoted to initial screening of applications and subsequent handling of personal visits, which will speed up the overall processing of cases.

Regardless of possible concerns regarding the procedure, it is good that lawmakers recognise the difficulties in submitting applications for residence permits in Poland and the lengthiness of the process, and are taking action to streamline these procedures.

This article originally appeared on the blog HRlaw.pl.

Magdalena Świtajska, attorney-at-law, Wojciech Górski, adwokat, Employment practice, Wardyński & Partners