Position of the Union of Entrepreneurs and Employers on the draft act amending the Act on Foreigners and certain other acts

Warsaw, 5^th November 2021

Position of the Union of Entrepreneurs and Employers on the draft act amending the Act on Foreigners and certain other acts

The draft act amending the Act on Foreigners and certain other acts was submitted to the Sejm on 22^nd October 2021. Already on 26^th October 26, it was sent to appropriate committees for its first reading. Apart from the Act on Foreigners, it also introduces changes to the following acts: on Repatriation, on Employment Promotion and Labour Market Institutions, on Healthcare Benefits Financed from Public Funds, and on Stamp Duty. In the draft act, there are a number of changes that will impact the both the legal situation of foreigners and their everyday lives, including work permits and related procedures.

The Union of Entrepreneurs and Employers decided to scrutinise the proposed changes. In our view, they are certainly beneficial and, to a large extent, a major step towards improving the situation of foreigners on the Polish labour market. Nonetheless, the proposals are insufficient and, in some respects, increase formalism and complexity of provisions regarding foreigners’ ability to enter the Polish labour market.

A crucial and desired change is to abandon the requirement to have a stable and regular income (thus far provided for in Art. 114 sec. 1.2) along with a place of residence (Art. 114 sec. 2) in the procedure to obtain temporary residence and a work permit. Certainly, such a solution should be considered a helping hand, because when foreigners decide to find employment in Poland, they will no longer be forced to have a place of residence and therefore long-term financial obligations. Furthermore, while the requirement to have a stable and regular income has been removed, Art. 114 sec. 1.4 remains guaranteeing that entities entrusting work to foreigners will provide them with remuneration which (in accordance with the proposed amendment to point Art. 114 sec. 1.5 of the Act on Foreigners) “is not lower than the minimum amount of remuneration for work, regardless of the working hours or type of legal relationship being the basis for the performance of work by a foreigner”. Such a solution is legally consistent and simplifies existing rules.

Amendments to Art. 119 and Art. 120 of the Act on Foreigners are welcome changes too that we evaluate positively. The amendment to Art. 119 will allow foreigners to perform work after the existing civil law contract is transformed into an employment contract, after changes to job post name while retaining the current scope of duties or increasing the working time provided it results in a proportional increase in remuneration. On top of that, pursuant to the amended Art. 120, foreigners working in Poland will not have to re-apply for a work permit as it is the case presently in the event of change to the entity they work for, because the existing one will suffice.

Undoubtedly, one of the draft acts key provisions is the amendment to Art. 88z of the Act on Employment Promotion and Labour Market Institutions. According to the new wording of sec. 2(3), entrusting work by means of an employer’s declaration is to be extended from 6 months to 2 years. This is a welcome change indeed, as it will eliminate the extremely high rotation of employees benefitting both employers and employees. The latter will gain greater stability and job security in the long term. It will certainly allow them to better assimilate and perhaps even encourage them to stay in Poland for a long time. The former, on the other hand, will not have to bear costs associated with frequent rotation of employees, such as recruitment, training etc.

Nevertheless, the question regarding potential future of employees at the end of the 2-year-long employment period on the basis of a declaration of entrusting work to a foreigner remains open. We believe there ought to be a mechanism enabling a foreigner to obtain a work and residence permits conveniently, regardless of the type of work performed and without the so-called labour market test (the procedure of verifying whether the employer’s staffing needs can be satisfied locally). This procedure does not meet the needs of the contemporary Polish labour market, which urgently needs an influx of workforce, that is, workers willing to settle in our country for a long time, looking for employment and starting families. We need to fill the generation gap leading not only to an economic slowdown, but also a growing burden on the social security system.

The Union of Entrepreneurs and Employers presented its proposals in this respect in our report “Poland’s migration policy – necessary directions for changes” ¹. They include, among others, the introduction of a “white and red card” which is a document confirming the right to stay and take up employment by a foreigner. It would be initially issued for a period not longer than 3 years, and later extended indefinitely if the foreigner meets specific criteria, such as no criminal record.

All in all, the Union of Entrepreneurs and Employers positively evaluates the draft act on the amendment to the Act on Foreigners and certain other acts in the form presented by the Polish Prime Minister. It certainly is a step in the right direction. However, we need a comprehensive immigration strategy which would take into account: the change in the model of immigration to Poland (from short-term and fast-rotating to permanent), the need to secure our domestic borders, and the necessity to control the dynamics of immigration processes. With this in mind, it would be reasonable to extend the proposed changes to include an easy path to change the declaration to entrust work to a foreigner into a work and residence permit.

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