When I cannot apply for a temporary residence and work permit

Refusal to initiate proceedings for a temporary residence and work permit

The provisions of the Act on foreigners are changing dynamically. Foreigners and employers
must pay attention to whether it will be possible to entrust work to a foreigner in a specific
situation. Will it be possible to initiate work-related residence permit at all. The regulations
provide for situations in which the voivode will not be able to start proceedings at all.
Why a voivode? Although this is obvious to many, it is probably not for everyone. This is
because the voivode is the first instance authority that conducts the proceedings and issues
residence decisions (refuses to issue them). Thus, the application in matters of residence is
submitted to the voivode (in the voivodeship office).
In this entry, I will discuss the circumstances that prevent the initiation of proceedings for
temporary residence and work permit.

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What does it mean to initiate proceedings?

The initiation of proceedings is the moment from which the authority – in this case the
voivode – begins to examine the substantive application. Substantively, i.e. checking whether
a foreigner meets the conditions for granting a residence permit. In other words, he examines
whether the purpose of the stay which the foreigner refers to requires that he stays in Poland
for over 3 months. The voivode informs the foreigner in writing that the proceedings have
been initiated if there are grounds for its formal initiation and no negative premise has
occurred. He will usually also provide the estimated time of decision. If the voivode refuses to
initiate proceedings, a decision will be sent to the foreigner.
The grounds for refusing to initiate the proceedings in question can be divided into basic and
specific. The basic ones apply to almost all temporary residence permits. There are a few
exceptions, e.g. proceedings for permission to reunite with a family will be initiated despite
the fact that the foreigner is staying abroad. Some of the other types of temporary permits
provide for additional situations in which proceedings will not be initiated.
Therefore, it should be remembered that submitting an application for a temporary residence
and work permit does not guarantee that the voivode will start the proceedings at all.

Basic reasons for refusing to initiate proceedings

The basic grounds for refusing to initiate (i.e. formally start) the proceedings can be divided
into several categories:

1. formal deficiencies of the applications,
2. the foreigner has a different residence title, which prevents submission of the application,
3. security considerations,
4. the foreigner must leave the territory of Poland.

Formal deficiencies of the application

Some of the most important reasons why the voivode refuses to initiate proceedings include
formal errors, i.e.:
1. the foreigner did not submit fingerprints when submitting the application or within the
prescribed period,
2. the foreigner stayed outside the Republic of Poland at the time of submitting the application.
Contrary to appearances, these errors occur relatively often. As a rule, an application for a
residence permit is submitted by the foreigner in person. He submits it while staying in
Poland. The application can also be sent to the office by post, but the foreigner must still be in
Poland. At the same time as submitting the application, the foreigner must submit his
fingerprints. The above is not always possible. Sometimes the deadline for submitting prints
must be booked online. In other cases, the office will request in writing to appear in the office
for this purpose. If the foreigner misses the deadline and does not submit his fingerprints, the
initiation of proceedings will be refused.

Wrong residence title

A foreigner cannot submit an application for a temporary residence and work permit when he
is on Polish territory on the basis of:
1. permits for permanent residence or long-term resident’s stay in the European Union (these
permits are better, give more rights and allow you to perform virtually any job),
2. Schengen visas authorizing entry for humanitarian reasons, due to national interests or
international obligations,
3. a temporary residence permit due to circumstances that require his short stay in the country
(e.g. the need to appear in person before a court or public authority, the special personal
situation of a foreigner requires his presence, or this presence is caused by the interest of
Poland),
4. permissions for tolerated stay or permission to stay for humanitarian reasons or in
connection with granting him asylum, subsidiary protection or temporary protection or
granting him refugee status in the Republic of Poland,
5. applies for international protection or asylum.

Safety considerations

The next premises for refusing to initiate proceedings are connected with the threat that a
foreigner could potentially pose in Poland:
1. a foreigner is detained, placed in a guarded centre or in a detention centre for foreigners,
2. a preventive measure is applied to the foreigner in the form of a ban on leaving the country,
3. he is serving a sentence of imprisonment or is temporarily arrested.

In the above situations, the foreigner has a different residence title. Until the situation of the
foreigner is clarified, this title does not allow, however, to apply for a temporary residence
permit in Poland.

The foreigner must leave Poland

It happens that a foreigner was formally obliged to leave Poland, but he has not yet left. In
this situation, he also cannot apply for temporary residence permit. It is about situations when
a foreigner stays in Poland, but must leave:
1. after he was obliged to return, and the deadline for voluntary return specified in the decision
obliging the foreigner to return has not passed yet, but also in the event of extension of this
period,
2. after one of the following decisions was issued and they became final (art. 299 par. 6 of the
Act on foreigners):
– the extension of the Schengen or national visa has been refused,
– the residence permit (temporary, permanent, long-term EU resident) was refused,
– the proceedings in the cases indicated above were discontinued,
– temporary, permanent of long-term EU resident permit has been withdrawn,
– refugee status or national protection was refused,
– the application for international protection was declared inadmissible,
– the proceedings on granting international protection were discontinued,
– the refugee status or subsidiary protection was removed,
– residence permit was withdrawn for humanitarian reasons.

Special reasons for refusing to initiate proceedings

In the case of temporary residence and work permits, the regulations provide for additional
grounds for refusing to initiate proceedings. To a large extent, it is a situation when a
foreigner should apply for another type of permit, because on the day of submitting the
application:
1) he is an employee delegated to work in Poland for a specified period of time by an
employer established outside the Republic of Poland – for the entire period of delegation, or
2) stays in Poland on the basis of obligations set out in international agreements regarding the
facilitation of entry and temporary stay of certain categories of natural persons involved in
trade or investment, or
3) conducts business activity on the territory of the Republic of Poland. In this situation, the
foreigner must apply for a temporary residence permit in order to conduct business activity.

Note – a novelty

A novelty is a big word, because the provision has been in force since April 27, 2019.
However, due to the waiting time for fingerprints to be submitted, some foreigners may be
surprised when after many months of waiting it turns out that their proceedings cannot take
place.
From April 27, 2019, the voivode will additionally refuse to initiate proceedings when, on the
day of submitting the application for granting this permit, the foreigner is in Poland:
1) in order to perform seasonal work (within the meaning of art. 88 par. 2 of the Act of April
20, 2004 on the promotion of employment and labour market institutions), or
2) on the basis of a visa issued for the purpose of tourism or in order to visit family and
friends (respectively, art. 60 par. 1 point 1 or 2 of the Act on foreigners), or
3) for tourist purposes or for visiting family or friends, based on a visa issued by another
country of the Schengen area.
The latest provisions apply to proceedings initiated and not completed before the
amendment’s is in force. In other words, they apply to proceedings initiated from April 27,
2019. It is work remembering that it was previously unacceptable to submit an application for
a residence and work permit when the tourist visa was the title of the stay.
Until now, submitting the application while the foreigner was staying on the basis of a tourist
visa did not end with a positive outcome. In this situation, the case was “taken over” by the
Border Guard and issued a decision to expel the foreigner from Poland (commitment to
return). It was considered that the purpose and conditions of the foreigner’s stay in Poland
were incompatible with the purpose declared when crossing the border. In addition, changing
the goal from tourism for profit was not allowed.

Consequences of refusing the initiation

The consequences of refusing to initiate the proceedings will usually be serious. Usually, it
turns out that the next application cannot be submitted and the foreigner’s stay has long been
illegal. Illegal, because he did not effectively submitted an application for a temporary
residence permit during his legal stay. Only effective, in formal terms, submission of a
residence application extends the legality of a foreigner’s stay in Poland.
Legal status as of December 2019.

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