Should I apply for international protection to legalise my stay after 24.08.23?
According to the current wording of the provisions of the Act on Assistance to Ukrainian Citizens in Connection with the Armed Conflict on the Territory of Ukraine (Special-purpose Act), Ukrainian citizens receiving temporary protection in Poland will only be able to apply for temporary residence in Poland if the purpose of their stay in Poland is:
– performance of the work,
– pursuing a highly qualified occupation (Blue Card) or,
– conducting business.
The submission of residency applications by such persons will be possible from April 1, 2023. Unfortunately, the Special-purpose Act does not currently provide for the possibility for children under temporary protection in Poland to apply for a temporary residence permit, even after April 1, 2023, even if they are children of persons authorised as of April 1, 2023, to apply for temporary residence. This possibility is also not available to other Ukrainian nationals who do not work or conduct business in Poland.
The legality of the stay in Poland of Ukrainian citizens who enjoy temporary protection and cannot apply for a temporary residence permit is ensured at least until August 24, 2023. Based on the current legislation, after this time their further stay in Poland may be considered illegal. Of course, this risk may be eliminated by new legal solutions introduced at both the European and national level. It is possible that we will see another amendment to the Special-purpose Act in the coming months, and even before August 24, 2023, which will expand the catalogue of persons who will be entitled to apply for a temporary residence permit in Poland (e.g. to include children and spouses of persons who will already be authorised to submit residence applications from April 1). It is also possible that the temporary protection granted to Ukrainian citizens will be extended, e.g. until the end of 2023. Bearing in mind, that there are still 5 months until August 24, 2023, a date by which Ukrainian citizens certainly do not have to worry about the legality of their stay in Poland, it seems that there is no need to take any additional steps now to legalise their stay in Poland after that date.
However, should no additional solutions be introduced in the following months to extend the legality of the stay of Ukrainian nationals in Poland beyond August 24, 2023, these individuals may consider applying for international protection.
International protection can take two forms: granting refugee status or obtaining subsidiary protection.
A foreigner shall be granted refugee status if, as a result of a well-founded fear of persecution in his/her country of origin on account of race, religion, nationality, political opinion, or membership in a particular social group, he/she is unable or unwilling to avail himself/herself of the protection of that country.
Subsidiary protection, on the other hand, shall be granted to a foreigner if returning to his/her country of origin may expose him/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 individualised threat to life or health arising from the widespread use of violence against civilians in a situation of international or internal armed conflict and, because of this risk, is unable or unwilling to avail himself/herself of the protection of his/her country of origin.
A preliminary assessment can be made that the current situation in Ukraine may justify the granting of international protection through subsidiary protection, although of course each case will be examined individually.
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. One should be prepared for the fact that the submission of the application is accompanied by additional procedures such as:
- photography (compulsory),
- fingerprinting (compulsory for persons over 14 years of age),
- medical examinations and sanitary procedures,
- detailed verification of the person (only where justified for reasons of security, order),
- an individual interview on the circumstances indicating which country will be responsible for processing the application for international protection.
The acceptance of the application shall be confirmed by issuing to the foreigner a temporary foreigner’s identity certificate which, during its validity period, confirms the identity of the person and entitles the person and minor children whose data have been entered therein to reside on the territory of the Republic of Poland.
The applicant’s passport is placed in safe custody for the entire duration of the international protection proceedings. Formally, a person who has submitted an application for international protection may be detained and then placed in a guarded centre or a detention centre for foreigners for up to 60 days. An order in this regard shall be made by the court. The period of detention in the centre may be prolonged. However, early release of the person from detention is also possible.
The legislation also provides for the possibility of alternative measures such as, for example, reporting at specified intervals to a specific authority or the payment of cash security.
If the stay of a Ukrainian citizen on the territory of the Republic of Poland on the date of the application for international protection is legal and there is no problem with establishing the identity of the foreigner, the risk of detention and placement in a guarded centre or in a detention centre for foreigners seems negligible.
One of the more significant consequences of filing an application for international protection is that the Special-purpose Act no longer applies to such persons with regard to the recognition of such a person’s stay in the territory of the Republic of Poland as legal.
During the period, when the application for international protection is being examined (up to 6 months), the foreigner cannot work or leave Poland.
Only after the proceedings have been completed will the foreigner be able to travel. A protected person may apply for a permanent residence permit after a 5-year stay in Poland counted from the date of the application for protection.
Return to the territory of Ukraine after the protection has been granted may result in the termination of such protection.
Social assistance and medical care are provided to the applicant for international protection.
While waiting for the decision to grant international protection, the foreigner’s stay in Poland will be legal.
As is apparent from the above, in the process of applying for international protection, a Ukrainian citizen will face a number of restrictions that are not present when enjoying temporary protection in Poland. Considering the above, it seems reasonable to withhold the decision to apply for international protection and to continue to wait for further legal solutions allowing for the legalisation of residence in Poland after August 24, 2023, in a simpler way.