How to employ a refugee from Ukraine who entered after February 24 and wants to work but has no confirmation of crossing the border?

According to Art. 22 of the Act on Assistance to Ukrainian Citizens in Connection with the Armed Conflict on the Territory of that State (“Special Act”), a Ukrainian citizen is entitled to work in Poland during the period of stay in accordance with applicable regulations, if:

1) his stay on the territory of Poland is considered legal on the basis of the Special Act (i.e. he entered Poland from Ukraine from February 24, 2022 in connection with the war in Ukraine and with the intention of staying in Poland) or

2) is a citizen of Ukraine residing legally on the territory of Poland (i.e. also a person who entered Poland before the war, as long as he resides in Poland legally)

– if the entity entrusting the performance of work notifies, within 14 days from the date of commencement of work by a citizen of Ukraine, the poviat labor office competent for the registered office or place of residence of the entity to entrust the performance of work to that citizen, and the work is entrusted for a working time not lower than indicated in or for the number of hours not less than indicated in the notification and for remuneration not lower than the remuneration set at the rate specified in the notification, proportionally increased in the event of an increase in the working time or the number of working hours.

In accordance with the above, the conditions that must be met in order to entrust work to a foreigner are clear. As for the employer’s obligation, the matter seems clear – there is a need to notify the employment office in a timely manner of entrusting work to a Ukrainian citizen.

The problem is the obligations imposed on a citizen of Ukraine. If he wants to be a beneficiary of the special act and on its basis have his stay in Poland considered legal, and his entry to Poland has not been recorded in any of his documents and has not been registered by the commanding officer of the Border Guard post during border control, or the border has been crossed through the border where border control is not carried out, he should apply for registration of stay. The role of such an application is fulfilled by the application for PESEL UKR. Even if a foreigner already had a PESEL assigned before the war, in order to register his stay, he should go to any commune office and apply for an update of the PESEL by adding the UKR annotation to his number.

However, in accordance with the Special Act, the registration of a Ukrainian citizen’s stay on the territory of Poland takes place at his request (in the form of an application for a PESEL UKR number), submitted no later than 90 days from the date of entry into the territory of Poland. At the same time, the legislator did not specify the rigor of failure to perform this activity on time. Therefore, it should be recognized that failure to meet the deadline does not have negative consequences for a citizen of Ukraine and does not deprive him of his rights under the Act.

Submission of an application (for a PESEL UKR) after 90 days from the date of entry into the territory of Poland should not constitute a basis for refusal to register the stay of a Ukrainian citizen by the Commander-in-Chief of the Border Guard, as there is no provision in the Act constituting a substantive legal basis for such a refusal, as well as a provision competence, indicating the authority competent to refuse registration of stay.

Failure to comply with the 90-day deadline also has no effect on recognizing the stay of a Ukrainian citizen on Polish territory as legal pursuant to Article 2 section 1 of the Special Act, because – as it results from the aforementioned regulation – the recognition of the legality of residence takes place by operation of law, without the need to issue an act in the field of public administration or perform any registration activities. In the discussed context, it is also significant that the legislator clearly indicated when the stay of a Ukrainian citizen on the territory of Poland ceases to be considered legal within the meaning of the above-mentioned provision: it will occur in the event of departure from the territory of Poland for a period of more than 1 month (Art. 11 section 2 of the Special Act).

The submission of an application by a citizen of Ukraine after 90 days from the date of entry into the territory of Poland does not affect the possibility of obtaining a PESEL number, as the legislator did not specify the deadline for submitting an application for a PESEL.

However, from the point of view of an entity that wants to entrust work to a Ukrainian citizen who is unable to prove the legality of his stay in Poland, it is safer to refrain from entrusting work until the foreigner obtains a PESEL UKR, because the entity entrusting work to a foreigner is obliged to verify whether the foreigner stays in Poland legally, whether the basis of his stay entitles him to work, and the obligation to keep copies of documents confirming the legality of the foreigner’s stay in the employees’ files.

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