How to legalise the stay of children under temporary protection after 24.08.23?

Children who are under temporary protection in Poland, even if they are children of persons authorised as of April 1, 2023, to apply for temporary residence in Poland, cannot obtain a temporary residence card in Poland (as the law currently stands). These children are guaranteed legal residence on the territory of the Republic of Poland until August 24, 2023. Polish legislation at this moment does not regulate the residence situation of such persons after August 24, 2023.

The inability of children to apply for temporary residency (e.g. to stay with a parent) is due to the general principle expressed in the Act on Foreigners, according to which persons under temporary protection shall be refused to initiate proceedings for a temporary residency permit. The Special-purpose Act on Assistance to Citizens of Ukraine introduces an exception to this rule, but only for those who work, are engaged in a skilled occupation, and are self-employed in Poland.

In theory, it would be possible to apply for temporary residence in Poland if the child loses temporary protection. It can be lost, for example, by leaving the territory of the Republic of Poland for more than 30 days. However, the described solution raises another problem – apart from the obvious inconvenience of the child leaving Poland and the issue of custody of that child, there is also the question of the legality of the child’s re-entry into Poland. In a situation where the entry of a Ukrainian citizen to Poland does not take place from the territory of Ukraine, i.e. he/she does not meet the prerequisite of being granted temporary protection in Poland (which is what would be important in this case), he/she must have a title entitling him/her to cross the Polish border and stay on the territory of Poland (e.g. have permitted days of stay under the visa-free regime). Thus, in practice, such a solution seems unlikely to be applicable.

It seems that the Polish legislator will have to regulate in the coming months the residency of children of persons who are under temporary protection and will apply for temporary residency in Poland from April 1, 2023. Such solutions are what we are waiting for. Considering the ongoing war on the territory of Ukraine, it is possible to extend temporary protection for a period after August 24, 2023, and, in the event of the end of the war, to introduce a transitional period during which it will be possible to take steps to legalise the further stay of Ukrainian citizens in Poland.

For the moment, however, it must be assumed that the stay of children under temporary protection in Poland is legal until August 24, 2023. Only if it is certain that neither Poland nor the EU authorities will introduce new solutions allowing for the further stay of Ukrainian citizens in Poland, one may consider applying for international protection for a minor in Poland (granting refugee status or subsidiary protection). However, it seems that consideration of taking such action should still be withheld and new legal solutions awaited.