Labour law updates and recommendations 2022

Ukrainian citizens travelling outside Poland

Today is the 90th day since the beginning of the war in Ukraine. The passing of 90 days also means the loss of a foreigner’s entitlements under the visa-free travel regime. This has a significant impact on the possibility of travelling within the Schengen Area and, as it turns out, also applies to Ukrainian citizens.

The Special Act has certainly improved the rules of residence and employment of Ukrainian citizens in Poland. However, despite the introduction of two amendments, some issues are still not sufficiently clear and the number of questions is still growing. One of these issues is the possibility for Ukrainian citizens to travel outside Poland.

Travel on the basis of the visa-free regime

Ukrainian citizens with a biometric passport are entitled to visa-free travel, i.e. the possibility to cross national borders, on the basis of a passport, without the need for a visa or residence permit. This entitlement is valid for 90 days in each 180-day period. It is worth mentioning that crossing the borders of countries that are included in the visa-free regime does not cause the 90-day period to start counting from the beginning – it counts from the moment of the first crossing of the border of a country included in the visa-free regime until the Ukrainian citizen returns home. For example, if a Ukrainian citizen enters the Czech Republic and after four days arrives in Poland, where he/she spends the next five days, he/she will have already used up nine days of his/her visa-free travel entitlement. This general rule has not been modified by the Special Act.

90 days have passed – what now?

According to the Special Act, the stay of a Ukrainian citizen is, in general, considered legal for a period of 18 months starting from 24 February 2022. However, it should be noted that this only refers to the stay in Poland and does not include the possibility of crossing the Polish border, even to other countries covered by the visa-free regime. Therefore, a Ukrainian whose stay in Poland has been legalised under the Special Act may travel abroad only within 90 days of the first crossing of the border of a country covered by the visa-free regime. Otherwise, it may not be possible to return to Poland.

Departure from Poland for more than one month and visa-free travel

According to the Special Act, if a Ukrainian citizen leaves Poland for more than one month, he/she loses residence rights. This means that in a situation where a Ukrainian citizen is staying in Poland on the basis of the Special Act, leaves Poland for more than one month, and then returns to Poland, he/she no longer has the right to stay in Poland for 18 months calculated from 24 February 2022. It is important to note that the provision in the Special Act about leaving Poland for more than one month is independent from the 90-day visa-free regime. In other words, it does not legalise foreign travel after the expiry of 90 days, but only indicates that if a person may legally travel (for example within the above-mentioned 90 days), such travel cannot be longer than 1 month in order to retain the rights under the Special Act.

Summary

The above loophole in the regulations could be particularly inconvenient for employers that want to send their employees on foreign business trips.

Unfortunately, at the moment, no amendments to the law are envisaged that would eliminate the above doubts or at least provide an official interpretation of the provisions related to the possibility of travel for Ukrainian citizens.

The only solution to travel seems to be to apply for a visa. An amendment was recently made to the Act on Foreigners which makes it possible to submit an application for a Polish national visa in Poland to the Ministry of Foreign Affairs –  not only in Polish consulates located in other countries.

Unfortunately, in order for this solution to actually take effect, a new regulation must be issued by the Minister of Foreign Affairs. At the moment, no details have been announced about this procedure or even which countries’ citizens it will apply to.

 

Emilia Kalecka, associate

Justyna Helbing, intern