The issues regulating the entry and residence of citizens of Ukraine to Poland in connection with the armed conflict on the territory of that country are substantially regulated by two legal acts, i.e. the Act of 13 June 2013 on Foreigners and the Act of 12 March 2022 on Assistance to Citizens of Ukraine in connection with the Armed Conflict on the Territory of that State.
Since 24.02.2022 the entry of citizens of Ukraine, as well as other persons included in the personal catalogue of the Executive Council Decision (EU) of 04.03.2022, has been performed under a special procedure provided for by the Act on Foreigners, i.e. under the consent of the Commander of the Border Guard checkpoint.
This consent is granted without a specific procedure and the grounds for granting it are specified in Article 6(5)(c) of the Schengen Borders Code – these grounds are, to a certain extent, general clauses (they are quite broad and allow for considerable freedom of interpretation), and the nature of the consent is optional, i.e. the Chief Commander may express consent, but is not obliged to do so.
Therefore, it cannot be stated unequivocally that each time the Chief Commander will provide such consent and it will be possible to enter the territory of the Republic of Poland. The current political situation indicates that, despite the lack of documents, such consent will be granted, but it is impossible to guarantee that the situation will not change during a person’s stay in Ukraine, or that the Commander, after verifying the person concerned upon re-entry, will not decide that he or she cannot enter because, after leaving voluntarily, he or she may stay in Ukraine. In this respect, the analysis of the provisions does not allow a precise answer – as already noted, the provision allowing entry is of an optional nature.
While referring to the stay on the territory of Poland of persons who entered Poland after 24.02.2022, their status shall be governed by the Law of 12 March 2022 on Assistance to Citizens of Ukraine in connection with the Armed Conflict in the Territory of that State. The mere fact of leaving the territory of the Republic of Poland does not deprive a citizen of Ukraine, who entered Poland after 24.02.2022, of the possibility to enjoy the benefits granted by the above-mentioned legal act.
Nevertheless, a time limit of one month is specified – departure from the territory of Poland for a period exceeding one month deprives Ukrainian citizen of all the benefits of the Act.
Still, it should be noted that in accordance with Article 2(4) of the aforementioned Act, the Council of Ministers shall determine, by way of a regulation, the date constituting the last day of the period in which the legal entry into the territory of the Republic of Poland of a Ukrainian citizen declaring his intention to stay on that territory, results in his/her residence being considered legal.
On the other hand, it is important to remember that in recent times more and more legal acts have retroactive effect, which may mean that if the aforementioned regulation is issued, the date marking the last day of entry may be determined retroactively.