Should I apply for international protection to legalise my stay after 24.08.23?

Update: 23.06.2023

According to the current wording of the provisions of the Act on Assistance to Citizens of Ukraine in Connection with Armed Conflict on the Territory of Ukraine (Special Act), citizens of Ukraine enjoying temporary protection in Poland may apply for temporary residence in Poland only if the purpose of their stay in Poland will be:

– performance of work,

– performing work in a highly qualified profession (Blue Card) or

– conducting business activities.

The submission of residence applications by such persons is possible from April 1, 2023. Unfortunately, as of now, the special act does not provide for the possibility of applying for a temporary residence permit, even after April 1, 2023, by children under temporary protection in Poland, even if they are children of persons eligible as of April 1, 2023 to submit a temporary residence application. Such a possibility is also not available to other citizens of Ukraine who do not perform work or economic activity in Poland.

The legality of the stay in Poland of citizens of Ukraine who enjoy temporary protection and cannot apply for a temporary residence permit is ensured at least until March 4, 2024.

At the same time, it should be noted that until August 31, 2024, the right of residence in Poland is extended for those citizens of Ukraine who have legally arrived in Poland since February 24, 2022 in connection with the hostilities in Ukraine, who:  

-as of March 4, 2024 are receiving pre-school education, realizing compulsory education or realizing compulsory education in the Polish educational system (in accordance with the Education Act);

-as of March 4, 2024, are receiving education in a kindergarten or school operating in the Ukrainian educational system using distance education methods and techniques;

-no later than in the 2022/2023 school year, started studying at an industry secondary school, post-secondary school or school for adults.

This extension also applies to the parents or guardians of such persons if they are minors.

Until September 30, 2024, the stay of Ukrainian citizens taking the Polish baccalaureate exam (matura) on a revision date is extended.

Based on the current legislation, after said period their further stay in Poland may be considered illegal. Of course, this risk can be eliminated by new legal solutions being introduced at both the European and national levels. It is possible that in the coming months, and even before August 24, 2023, we will see another amendment to the special act that will expand the catalog of persons able to apply for a temporary residence permit in Poland (e.g. to include children and spouses of persons who are entitled to submit residence applications from April 1).

However, if no additional solutions were introduced in the following months to extend the legality of the stay of Ukrainian citizens in Poland after August 24, 2023, these individuals may consider applying for international protection.

INTERNATIONAL PROTECTION

International protection can take two forms: granting refugee status or obtaining subsidiary protection.

A foreigner is granted refugee status if, as a result of a well-founded fear of persecution in his or her country of origin on account of race, religion, nationality, political opinion or membership of a particular social group, he or she is unable or unwilling to avail him/herself of the protection of that country.

Subsidiary protection, on the other hand, is granted to a foreigner if returning to his or her country of origin may expose him or her to a real risk of suffering serious harm by:

-the imposition of the death penalty or execution,

-torture, inhuman or degrading treatment or punishment,

-a serious and individualized threat to life or health resulting from the widespread use of violence against civilians in a situation of international or internal armed conflict, and because of this risk he or she is unable or unwilling to enjoy the protection of his country of origin.

A preliminary assessment can be drawn that the current situation in Ukraine may justify the granting of international protection through subsidiary protection, although, naturally, each case will be examined on a case-by-case basis. 

Applications for international protection are decided in the first instance by the Head of the Office for Foreigners, but are submitted to any branch or post of the Border Guard. You should be prepared for the fact that the submission of the application is accompanied by additional procedures such as:

-photographing (mandatory),

-fingerprinting (mandatory for those over 14 years of age),

-medical examination and sanitary treatment,

-detailed examination of the person (only in cases justified by order security reasons),

-individual interview on the circumstances indicating which country will be responsible for processing the application for international protection.

Acceptance of the application is confirmed by the issuance to the foreigner of a temporary certificate of identity of the foreigner, which, during the period of its validity, confirms the identity of the person and entitles the person and minor children whose data are entered therein to stay in the territory of the Republic of Poland. 

The applicant’s passport is placed in safekeeping for the entire duration of the procedure for granting international protection. Formally, a person who has filed an application for international protection may be detained and then placed in a guarded center or in custody for foreigners for up to 60 days. The decision in this case is issued by the court. The period of stay in the center can be extended. However, early release of the person from detention is also possible. 

In addition, the regulations provide for the possibility of alternative measures such as, for example, reporting at specified intervals to a specific authority or the payment of monetary security.

If the stay of a Ukrainian citizen on the territory of the Republic of Poland as of the date of submitting the application for international protection is legal, and if there is no problem with establishing the foreigner’s identity, the risk of detention and placement in a guarded center or in custody for foreigners seems negligible.

One of the more significant consequences of filing an application for international protection is that the special act on recognition of such a person’s stay in the territory of the Republic of Poland as legal no longer applies to such persons. 

During the period of consideration of the application for international protection (up to 6 months), the foreigner is not allowed to work in and leave Poland. 

Only after the proceedings are completed will the foreigner be allowed to travel. A protected person may apply for a permanent residence permit after a 5-year stay in Poland counted from the date of application for protection. 

Return to the territory of Ukraine after the granting of protection may result in deprivation of such protection. 

A person applying for international protection is provided with social assistance and medical care. 

While waiting for the decision to grant international protection, the foreigner’s stay in Poland will be legal.

As can be seen from the above, in the process of applying for international protection, a citizen of Ukraine will encounter many restrictions that do not exist when enjoying temporary protection in Poland. In light of the above, it seems reasonable to withhold the decision to apply for international protection and continue to wait for further legal solutions that will allow legalization of residence in Poland after August 24, 2023 in a simpler way.