HRlaw.pl

Posted on Categories hiring foreigners

Change of entity entrusting performance of work to a foreign citizen in the context of a permit for temporary residence and work

At present, a change of work does not constitute any kind of extraordinary situation, with foreign citizens not being an exception to this. However, they do not all have unlimited access to the labour market. Quite the contrary: employment is often dependent on prior acquisition of a work permit. And what happens in situations where a change of employer takes place in the course of proceedings to obtain a permit for temporary residence and work? What are the changes that do not require a change to a decision and what are the ones requiring the lodging of a respective motion? And finally, is it possible to change employer after receiving a residence card?

Legalisation of residence and work within a single procedure

A temporary residence and work permit is one of the varieties of permit for temporary residence in the territory of the Republic of Poland. As the very name indicates, the main purpose of residence in such a case is work. A foreign citizen thereby obtains both a permit for temporary residence in the territory of the Republic of Poland and a work permit on the basis of a single decision, which is why it is popularly called a consolidated permit. Such a regulation (art. 114 et seq. of the Foreign Citizens Act) was created in the Polish legal order as the result of implementation of EU regulations. We also find similar solutions in other EU member states.

Change of entity entrusting performance of work whilst administrative proceedings are in progress

The first case concerns a situation in which an applicant notifies that he has lodged an application to be granted a permit for temporary residence in the territory of the Republic of Poland and that the case is still in progress. Confirmation of such a state of affairs will most often be through a respective passport stamp indicating the date the application was lodged, or else a print-out from the internet system for tracking the case. In such event, it will be necessary to lodge documents regarding the new employer and employment terms and conditions with the case files. In the case of a temporary residence permit on the basis of art. 114 of the Foreign Citizens Act, this essentially comes down to updating attachment no. 1, i.e. presenting a new print-out and documents confirming the empowerment of the person signed thereunder (this will most often be an authorisation and, so as to simplify the inspector’s work and accelerate the case, an official copy from the respective register). It must also not be forgotten that documents must be presented consequent upon the change of content in attachment no. 1, e.g. new information from the County administrator [starosta].

Change of entity entrusting performance of work after collection of decision and residence card

It is often the case, particularly with entities which have not employed foreign citizens before, that in employing new persons they concentrate solely on the actual residence card. Meanwhile, the residence card, meaning the proverbial piece of plastic constituting an identity document, will have been issued on the basis of a decision by the respective province governor on the basis of which the foreign citizen obtains permission for residence in the territory of the Republic of Poland. Thus, when employing foreign citizens, attention should first be paid to this decision.

We can discover from this the scope of the foreign citizen’s access to the labour market and next decide what steps might need to be taken for employment of the applicant to take place in accordance with the regulations.

What can be changed without the need to lodge a new application?

The Foreign Citizens Act only provides a very limited scope for introducing changes after a decision has been issued.

In the first place, the act enumerates the cases in which a change of decision is not required. And thus, pursuant to art. 119 of the Foreign Citizens Act:

  • change of registered office or place of residence, name or legal form of the entity entrusting performance of work to a foreign citizen,
  • takeover of an employer or part thereof by another employer,   
  • transfer of a work enterprise or part thereof to another employer, or
  • replacement of a civil law contract by an employment contract  

do not require change to a permit or issue of a new permit for temporary residence and work. This means, for instance, that a change of decision is not required if the place of registered office of the company where a foreign citizen works is changed after a respective permit has been issued, and let us remember that the place of registered office is a locality and not a specific address, so for instance this might be when a company moves from Warsaw to Cracow.

In the context of the cited regulation, it is worth drawing attention to one thing. In the event of a takeover or transfer of entity, the regulation refers to the entity which has employer status. In other words, if a foreign citizen for instance provided work on the basis of an employment contract, a change of permit is not necessary. But if, on the other hand this was a contract of mandate and a change of principal has occurred, then this regulation does not apply.

When is it possible to apply for a change of decision?

In its art. 120, the Foreign Citizens Act enumerates the cases in which a change of decision is possible. And thus, a decision on the basis of which a foreign citizen was granted permits for temporary residence and work can be changed at any time by a province governor upon application by the foreign citizen, this province governor being the one relevant to the foreign citizen’s present place of residence, if:

  • the foreign citizen intends to perform work with a different user employer  [pracodawca użytkownik] of the given permit-holder,
  • the position in which the foreign citizen is to perform work is being changed,
  • remuneration is being decreased (relative to the amount indicated in the decision),
  • the hours worked are being changed,
  • the kind of contract on the basis of which the foreign citizen is to perform work is being changed.  

Pursuant to the cited regulation, a reduction of remuneration relative to the amount indicated in the content of a decision requires that decision to be changed.  In turn, a change of decision is not required by an increase in remuneration or by a reduction if as a result it is not going to be less than the amount indicated in the decision. That said and in accordance with art. 114 section 1 point 5 of the Foreign Citizens Act, which regulates the terms and conditions for issuing a permit for temporary residence and work, remuneration must not be less than the minimum wage for employment.

A change of decision is also required for a change to working hours, e.g. transferring from part-time work to full-time or vice-versa, as also for a change in type of contract. This will apply, for instance, to situations which entail a move from an employment contract to a civil law contract. A reverse situation, i.e. transfer from a civil law contract to an employment contract, does not require a change to the decision. And finally, while the regulation provides for the opportunity to change the permit holder’s user employer without the necessity for a change to the decision, as to principle this only applies to a foreign citizen employed through a temporary employment agency. And the reverse – in the present legal status, a change of the entity entrusting work to the foreign citizen indicated in the content of a decision requires that a new application be lodged for the granting of a permit for temporary residence and work.

Karolina Misiewicz