Colombian citizens after August 15, 2024 – an important decision by the Head of the Office for Foreigners. What does it mean for employers?
Since August 15, 2024, many employers of Colombian citizens have encountered problems legalizing their employees' stay. Administrative bodies have begun to assume that Colombian citizens who come to Poland to work after this date must have a work visa.
In practice, this led to refusals to grant temporary residence and work permits to foreigners who entered Poland under visa-free travel and at the same time had documents related to the legal performance of work, in particular work permits.
However, the latest decision of the Head of the Office for Foreigners indicates that the assessment of such cases requires an analysis of the specific circumstances and regulations in force on the date of the decision.
European Commission notification and national regulations
In the case under analysis, the Head of the Office for Foreigners indicated that the mere notification sent by Poland to the European Commission regarding the introduction of an exception to the visa exemption for Colombian citizens traveling to Poland for the purpose of working did not result in an automatic change in national regulations regarding the possibility of working by foreigners.
Of key importance was Article 3, paragraph 3, point 6 of the Act on the conditions for the admissibility of entrusting work to foreigners on the territory of the Republic of Poland.
This provision provided for the possibility of performing work by a foreigner who:
had a work permit or a declaration of entrusting work,
was entitled to stay in Poland under visa-free travel,
unless his country is indicated in the list specified in the regulation issued under Article 3, paragraph 4 of the Act.
The lack of an implementing regulation was of significant importance
The Act provides for the possibility for the minister responsible for labour to determine a list of countries whose citizens – despite having a work permit – cannot work during their stay in Poland under visa-free travel.
In the opinion of the Head of the Office for Foreigners, the mere submission of a notification to the European Commission did not replace such a legal act.
This meant that during the period covered by the case in question it could not be automatically assumed that Colombian citizens had lost the ability to work solely because of the introduction of an exception to visa-free travel.
Why is this decision important for employers?
The position of the Head of the Office for Foreigners may be important for entrepreneurs employing Colombian citizens, in particular in matters relating to:
refusal to grant temporary residence and work permits,
appeals against decisions of voivodes,
complaints to the Provincial Administrative Courts,
assessment of the legality of employment of Colombian citizens after August 15, 2024.
In particular, it is worth analysing cases in which the refusal was based solely on the assumption that the mere lack of a national visa excluded the possibility of obtaining a residence and work permit.
Current legal status and planned restrictions
The Act provides for the possibility of limiting the performance of work by citizens of certain countries staying in Poland under visa-free travel by issuing an appropriate regulation.
Only the entry into force of such an implementing act results in the exclusion of the possibility of performing work by citizens of the countries indicated in the list, even if they have a work permit.
Therefore, every decision concerning a Colombian citizen should be assessed taking into account the date:
entry of a foreigner into Poland,
submitting a residence application,
issuance of a decision by the authority,
the validity of specific regulations.
What should an employer do?
An employer whose Colombian employee has been refused a residence and work permit should consider:
the legal basis indicated in the decision,
the body's argumentation,
date of issue of the decision,
documents regarding the employment of a foreigner,
the possibility of filing an appeal or complaint to the administrative court.
Expert recommendation
The most common mistake is to evaluate previous proceedings solely through the prism of current regulations.
In cases involving Colombian citizens who entered Poland after August 15, 2024, it may be crucial to determine whether the authority correctly applied the provisions in force at the time the decision was issued.
Entrepreneurs employing foreigners should each time verify the basis for the refusal and consider the possibility of taking further appeal action.