What is the legal situation of people who, at the outbreak of war, were staying outside Ukraine and instead of returning to a country at war, they came to Poland? If they did not “flee Ukraine” are they covered by any protection?
Update: 02.02.2023
According to the content of the Act on Assistance to Citizens of Ukraine, the stay of a citizen of Ukraine in Poland is considered legal for a period of 18 months counting from 24 February 2022, if the citizen of Ukraine, in the period from 24 February 2022, came to Poland legally from the territory of Ukraine due to military operations conducted there and declares his/her intention to stay in the territory of the Republic of Poland.
The legislation directly implies the obligation of coming from the territory of Ukraine – directly or through other countries. However, reading the provisions of the Act literally, it should be recognized that legal residence in Poland for a period of 18 months will not apply to Ukrainian citizens who have travelled after 24 February 2022 to Poland, but not from the territory of Ukraine (either directly or indirectly).
Under EU law, temporary protection shall be granted to Ukrainian nationals residing in Ukraine before 24 February 2022 who had to leave Ukraine as of that date as a consequence of the military invasion launched by Russian armed forces on that date. These provisions make it evident that temporary protection is, in principle, not due to persons “who fled Ukraine shortly before 24 February 2022 in connection with an escalation of tensions or who were in the territory of the Union (e.g. on holiday or for professional reasons) shortly before that date and are unable to return to Ukraine as a result of the armed conflict”. However, national authorities may extend temporary protection to these persons. As has already been explained above, it does not seem that Poland would opt for this extension, since it has introduced the criterion of arrival ‘from the territory of Ukraine’.
Thus, the citizens of Ukraine who came to Poland not from the territory of Ukraine after 24 February 2022 are able to legalise their stay in Poland under the general rules (i.e. a citizen of Ukraine may stay in Poland under the visa-free regime or on the basis of a visa, apply for temporary residence – e.g. in connection with work performed in Poland, or for permanent residence – e.g. if they have the Pole’s Card).
Importantly, every Ukrainian citizen is entitled to work in Poland during the period of legal stay in the territory of the Republic of Poland – if the entity commissioning work to a Ukrainian citizen notifies within 14 days from the date of taking up employment by such a citizen the district labour office about commissioning work to him/her. For more information, see here: https://www.gov.pl/web/udsc/postepowania-ws-udzielenia-zezwolenia-na-pobyt-czasowy-i-prace-dla-obywateli-ukrainy-prowadzone-w-szczegolnym-trybie-od-dnia-29-stycznia-2022-r.
Ukrainian citizens can also apply for international protection. It should be remembered, however, that during the proceedings it is not possible to leave Poland or undertake employment (unless the proceedings last longer than 6 months).
Legal basis:
- Ustawa z dnia 12 marca 2022 r. o pomocy obywatelom Ukrainy w związku z konfliktem zbrojnym na terytorium tego państwa
- Decyzja wykonawcza Rady (UE) 2022/382 z dnia 4 marca 2022 r. stwierdzająca istnienie masowego napływu wysiedleńców z Ukrainy w rozumieniu art. 5 dyrektywy 2001/55/WE i skutkująca wprowadzeniem tymczasowej ochrony