The situation of people who have not taken timely steps to regulate their stay in the territory of the Republic of Poland is difficult. Pursuant to Article 32 Paragraph 1, the commanding officer of the Border Guard post, after obtaining the consent of the Commander-in-Chief of the Border Guard, may allow a foreigner to enter the territory of Poland for a period of stay not longer than 15 days. If a foreigner wishes to stay in the territory of the Republic of Poland after this period, he should submit an application for a temporary residence permit. This application may be submitted on the last day of legal stay at the latest. If the deadline for submitting an application for granting a temporary residence permit to a foreigner has been met and the application has no formal defects or formal defects have been corrected on time, the voivode places a stamp in the foreigner’s travel document confirming the submission of the application for a temporary residence permit; and the stay of a foreigner on the territory of the Republic of Poland is considered legal from the date of submitting the application to the date on which the decision on granting a temporary residence permit becomes final. The consequence of failure to meet this deadline is that the voivode is obliged to refuse to grant a residence permit, even if all other conditions have been met.
Exceptionally, an undocumented stay cannot be the sole reason for refusing to grant a permit in several cases, that is:
- temporary residence permit for a family member of a Polish citizen when the foreigner is a minor child of a foreigner married to a Polish citizen recognized by Polish law and holding a temporary residence permit for a family member of a Polish citizen or a permanent residence permit granted in connection with being married with a Polish citizen,
- a temporary residence permit for a minor child of a foreigner who is staying in Poland on the basis of a national visa or a temporary residence permit, if the child was born during the validity period of the national visa or temporary residence permit.
Similarly, a temporary residence permit due to other circumstances may be granted to a foreigner (it is a discretionary decision) if (Article 187 points 6 and 7 of the Act on foreigners):
- his/her stay in Poland is necessary due to the need to respect the right to family life within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms, drawn up in Rome on November 4, 1950, and the foreigner is staying in Poland illegally, or
- his/her departure from the territory of Poland would violate the rights of the child, as defined in the Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989, to a degree significantly threatening his psychophysical development, and the foreigner is staying in Poland illegally.
Due to the ongoing state of the epidemic, if the deadline for submitting an application for a temporary residence permit (the last day of legal stay) falls during an epidemic threat or epidemic state announced in connection with SARS-CoV-2 virus infections, this period is extended until the expiry of the 30th day following the date of revocation of the last in force from the states.
Thus, the stay of a foreigner on the territory of Poland during the extended period referred to in sec. 1, is considered legal within the meaning of Article 108 Paragraph 1 Point 2 of the Act of 12 December 2013 on foreigners, if the foreigner submits the application within this period.
However, it is disputed whether the special covid act “extends” the possibility of legal stay also in the case of an exceptional consent to enter (15-day stay).
It should be emphasized, however, that the above regulations do not entitle to perform work in the territory of the Republic of Poland.
In the described situation, an alternative solution, if there are fears of persecution in the country of origin, is to submit an application for international protection. (https://www.gov.pl/web/udsc/w-jaki-sposob-zlozyc-wniosek-o-udzielenie-ochrony-miedzynarodowej2).
Due to the submission of the application, “the proceedings on obliging the foreigner to return are not initiated, and the proceedings initiated earlier are suspended.
It should be emphasized that while the stay during the examination of the application for international protection is legal, the performance of work is illegal.
Settlement of a case related to granting international protection, with the exception of the cases referred to in art. 39 sec. 1 of the act, takes place within 6 months from the date of submitting the application for granting international protection on the form. This period may be extended to 15 months, among others when a large number of foreigners submit applications for international protection at short intervals and this makes it impossible to recognize the application for international protection within 6 months.
If the matter concerning granting international protection is not resolved within 6 months and the delay was not due to the fault of the applicant, the Head of the Office, at the request of the person to whom the application for international protection relates, issues a certificate which, together with the temporary identity certificate of the foreigner, entitles that person to performing work in the territory of Poland.
It is worth remembering that the consequence of submitting an application for granting international protection is the obligatory refusal to initiate the procedure for granting a temporary residence permit, when on the day of submitting the application for granting this permit a foreigner applies for granting international protection or for asylum.
So ultimately it is up to the applicant to decide which path to use.
Legal basis:: ustawa z dnia 12 grudnia 2013 r. o cudzoziemcach (t.j. Dz. U. z 2021 r. poz. 2354 z późn. zm.), ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej (t.j. Dz. U. z 2021 r. poz. 1108 z późn. zm.), ustawa z dnia 2 marca 2020 r. o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych (t.j. Dz. U. z 2021 r. poz. 2095 z późn. zm.).