Belarusians on humanitarian visa - information for employers

In connection with the significant influx of persons residing in Poland from Belarus on humanitarian visas and the momentous changes in the generally applicable legislation concerning this category of foreigners, we would like to hereby inform you about the legal status of non-EU foreigners residing in the Republic of Poland on humanitarian visas, and in particular with regard to the possibility of providing work on the basis of this category of visas. The purpose of this information is to clearly present the legal basis, which stipulates that persons on humanitarian visas do not need to obtain a work permit in order to perform work on the territory of the Republic of Poland.

The general rules for the employment of non-EU foreigners assume that in addition to legal residence in the territory of the Republic of Poland, a foreigner must also have access to the labor market (in the form of a work permit) in order to perform work in the territory of the Republic of Poland. From the general principle of having a permit
for work is provided for in a number of exceptions under the Employment Promotion and Labor Market Institutions Act (Journal of Laws 2004 No. 99, item 1001, as amended; hereinafter the Promotion Act) and the
Regulations issued on the basis of authorizations contained in the Promotion Act. Such exceptions include the foreigner's possession of the Card of the Pole, refugee status or obtaining subsidiary protection, and the possibility of employing a specific group of foreigners on the basis of the
statement of work assignment and other special cases.

Article 90(4) of the Promotion Act stipulates that the minister in charge of labor may specify cases in which entrusting a foreigner with work in the territory of the
Republic of Poland is permitted without the need to obtain a work permit. The legal act regulating cases that do not require a foreigner to obtain a work permit is the Ordinance of the Minister of Labor and Social Policy of April 21, 2015 on
Cases in which entrusting work to a foreigner on the territory of the Republic of Poland is permissible without the need to obtain a work permit (Journal of Laws of 2015, item 588, as amended; hereinafter the MPiPS Regulation).

The MPiPS Regulation was amended by the Ordinance of the Minister of Development, Labor and Technology of November 20, 2020, amending the Ordinance on cases in which the assignment of work to a foreigner on the territory of the Republic of Poland is
permissible without the need for a work permit (Journal of Laws of 2020, item 2081; hereafter referred to as the MRPiT Ordinance) by adding new points specifying that foreigners do not need to obtain a work permit. The MRPiT Ordinance has been published
in the Official Gazette on November 25, 2020 and comes into force on December 1, 2020.

A number of new addressees of legal norms who are exempted from the requirement to obtain a work permit are introduced by § 1 of the MRPiT Ordinance, including the addition of item. 21 in the following wording, which defines the group of persons "holding a valid visa issued for the purpose referred to in Article 60, paragraph 1, item 23 of the Law on Foreigners of December 12, 2013 (Journal of Laws of 2020, items 35 and 2023)."

The reference in the MPiPS regulation added para. 21 means that there is no need to obtain a work permit from persons to whom a visa has been issued for the purpose of "arrival for humanitarian reasons, due to the interests of the state or international obligations," according to the wording of Article 60, paragraph 1, item 23 of the Law on Foreigners of December 12, 2013. In addition, the above type of visa on the visa sticker in the section on the purpose of issuance is marked as purpose "21". Such numbering (purpose 21) is provided for in § 2 para. 25 of the Ordinance of the Minister of Internal Affairs and Administration of April 19, 2019 on visas for foreigners (Journal of Laws.
2019 item 782) for situations "where the visa is issued for the purpose of arrival for humanitarian reasons, due to state interests or international obligations," meaning that humanitarian visas under the regulation are defined as having a purpose 21.

Accordingly, it should be stated that as of 1.12.2020, foreigners holding a visa issued for humanitarian purposes, marked on the visa sticker as a visa issued for the purpose of 21, have the right to work in the territory of the Republic of Poland without having to obtain a work permit. A valid humanitarian visa thus becomes both a document
legalizing the foreigner's stay in the territory of the Republic of Poland, as well as a document allowing access to the labor market. Thus, both general conditions for legal residence and access to the labor market are met by a non-EU foreigner holding a humanitarian visa and intending to provide work on the territory of the Republic of Poland.

Author: Anna Matsiyeuskaya 
[email protected]