DRAFT LAW ON ASSISTING UKRAINIANS IN POLAND

#StandWithUkraine

On 7 March 2022 the Polish government presented to the Polish Parliament (the „Sejm„) a draft of a special act on assistance to citizens of Ukraine in connection with Russia’s invasion of Ukraine (the “Special Act”). The Sejm will now consider the Special Act. Once finally adopted, the Special Act would apply retroactively from 24 February 2022, i.e., the day Russia invaded Ukraine. Below are the main provisions of the draft Special Act.

• Stay in Poland

Under the Special Act, if a citizen of Ukraine has entered or enters Poland legally from 24 February 2022 to the date specified in the implementing regulation (which is yet to be issued) and declares his/her intention to remain in Poland, his or her stay will be deemed legal for a period of 18 months. The foregoing shall not apply to citizens of Ukraine who were granted a permanent residence permit, a long-term European Union residence permit, a temporary residence permit, refugee status, subsidiary protection, or consent for a tolerated stay.

If thereafter a Ukrainian citizen leaves Poland for a period of more than 1 month, he or she would then lose the right to stay legally in Poland on the terms set out in the Special Act.

The Polish Border Guard is to keep a register of Ukrainian citizens who enter Poland directly from Ukraine in connection with hostilities conducted in Ukraine and who submit an application to register to stay in Poland. If the entry of a Ukrainian citizen has not been registered at the Polish Border Guard post while crossing the border, the Ukrainian can register his or her stay in Poland no later than 60 days from the date of entry with the applicable Polish municipality.

Once the Ukrainian citizen’s stay in Poland is registered and recognized as legal, the Special Act also contemplates the possibility for a Ukrainian citizen to apply to extend his or her stay in Poland beyond the 18 months period, for a period of 3 years from the date of the decision. In order to do so, a Ukrainian citizen would need to submit an application for the extended temporary residence permit no earlier than 9 months from the date of entry to Poland and no later than 18 months from 24 February 2022. Once the extended temporary residence permit is granted, the Ukrainian citizen is entitled to work in Poland without the need for a work permit.

The Special Act also includes provisions regulating the status of those Ukrainian citizens who were already in Poland at the outbreak of the war. Under these provisions, if the Ukrainian’s stay in Poland was legal on 24 February 2022, his or her stay shall be deemed legal until 31 December 2022, and the validity of any accompanying documentation would be similarly extended. Such an extension of legal stay in Poland until 31 December 2022 also applies to Ukrainian citizens, who entered Poland on the basis of other exceptions consented to by the Polish Border Guard’s Commander-in-Chief (e.g., due to the lack of a visa or other documentation, which is normally required to enter Poland).

• Work in Poland

A Ukrainian citizen will be entitled to work in Poland legally if his or her stay in Poland is deemed legal pursuant to the Special Act or other applicable regulations, provided that the employer notifies the applicable district labor office of the hiring. The notification must take place within 7 days of the date of commencement of work by the Ukrainian worker and can be done electronically via the praca.gov.pl online portal.

A Ukrainian citizen can also register and be officially recognized as unemployed or seeking employment, which would entitle him or her to receive support in finding a job from the Labor Office. The usual upper limit of the age for such registration (60 years for a woman or 65 years for a man) will not apply to such Ukrainian citizens.

• Conducting business activity in Poland

Ukrainian citizens whose stay in Poland is considered legal pursuant to the Special Act or the Act of 12 December 2013 on Foreigners may undertake and conduct business activity in Poland on the same terms as Polish citizens, provided that the Ukrainian citizen obtains a PESEL number.

• Access to health care system

Ukrainian citizens whose stay is legalized under the provisions of the Special Act (but not under other, generally applicable immigration regulations), are to be entitled to receive the regular health care benefits available to Polish persons covered by Poland’s social insurance scheme. They are eligible to receive all health care services, except for stays in health resorts, including rehabilitation in such resorts. Ukrainian patients will also be able to obtain and fill prescriptions on the same conditions and at the same rates as Poles. The National Health Fund advises the health care entities to provide assistance and aid to the Ukrainians even prior the entry into force of the planned regulations, as they are to be effective retroactively, i.e., from 24 February 2022.

• Financial and material assistance

As a rule, Ukrainian citizens whose stay is legalized under the provisions of Special Act (but not under other, generally applicable immigration regulations) are eligible to receive certain financial benefits, provided they also fulfill certain prerequisites as set forth in Polish applicable regulations.

Such benefits consist of the following: (a) low income allowances, in particular connected with expenses incurred with respect to children or other family members, including (i) family allowance, (ii) single child benefits, (iii) nursing allowance, (iv) care allowance, (v) special care benefit, (vi) parental allowance, (vii) municipal allowances; (b) allowances connected with living with children in Poland, including (i) child benefit (commonly known as 500+), (ii) good start allowance, (iii) family care capital, (iv) financing reduced parent fee connected with nursery; (c) allowances connected to the personal, family, profit, property situation; (d) social financial assistance provided under the Act on the Education System; (e) food aid under the Food Aid 2014-2020 operational program following fulfillment of relevant conditions; and (f) special aid provided to citizens with disabilities.

In order to be eligible to receive these financial allowances, eligible Ukrainian citizens must fulfill the normal prerequisites set out in applicable regulations, as may be modified accordingly as a result of the special circumstances connected with war. For instance, the calculation of income determining the eligibility for family benefits shall not include the income of the family member not staying in Poland. Further, in order to benefit from the majority of aforementioned rights, especially those connected with parenthood, it is necessary to be registered with the register maintained by the Polish Border Guard Chief Commander, or to have the child registered therein with respect to child benefits.

In addition, eligible Ukrainian citizens are entitled to receive a one-time payment equal to PLN 300 per person aimed at financing subsistence expenses (e.g., food, clothing, accommodations). An application for such a payment shall be submitted to the applicable social welfare center (social service center). Eligible Ukrainians are also eligible to receive payments for psychological aid.

Apart from the above, pursuant to the Special Act, the governor (voivode) of each province may provide, under certain circumstances, assistance to the eligible Ukrainian citizens for accommodations, provision of full-board meals, and certain public transportation fee exemptions. Local governments may also voluntarily provide assistance and aid from their own resources, the scope of which is to be determined by resolution.

• Tax exemptions and incentives

The Special Act also provides for certain favorable tax incentives, both for Ukrainians fleeing the war and for those who provide them with financial or material support. For example, the Special Act introduces an exemption from the donation tax with respect to donations received by Ukrainian citizens coming to Poland from 24 February 2022 to 31 June 2022. Also, eligible Ukrainians will be exempt from income tax for receiving humanitarian aid and certain benefits. Furthermore, the costs of manufacturing or purchasing goods that are further donated between 24 February 2022 to 31 December 2022 to certain entities (e.g. NGOs) for purposes related to counteracting the effects of hostilities on the territory of Ukraine, will be tax deductible expenses.

• Education

The Special Act includes provisions providing Ukrainian children with access to educational institutions (e.g. schools and nurseries). Other provisions allow students from Ukraine to continue their studies in Poland, in particular by waiving the process of verifying studies already completed. Students from Ukraine who want to continue studies in Poland will also be able to apply for social scholarships and student loans.

• Polish identification number (PESEL) and trusted profile (ePUAP)

The Special Act introduces a special procedure for Ukrainian citizens to obtain an identification PESEL number, which is necessary for them to access certain public services and conduct business activities. The application for a PESEL may be submitted at any local municipal authority in Poland. The application may include consent to confirm a trusted profile that allows access to administrative services via the ePUAP electronic platform. Ukrainians will also be able to use mObywatel – a free app in which certain data from public registers (e.g. PESEL register) is available and thanks to which, in certain situations, one can confirm his or her identity.

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Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.