Withdrawal agreement beneficiaries – all rights retained

Beneficial treatment is given to UK nationals who are ‘withdrawal agreement beneficiaries’ in Poland.  Those are persons who resided in Poland in accordance with EU law before the end of the transition period and who continue to reside here. They have the same rights in Poland as citizens of EU countries do – i.e. they can work or run businesses in Poland without limitation and can reside here indefinitely (as long as they work, study, or have sufficient means to support themselves etc.).

All other UK nationals are now considered third-country nationals, and as such they may need prior authorisation not only to undertake local employment in Poland, but also to visit Poland in business on behalf of their UK employer.

How to demonstrate ‘withdrawal agreement beneficiary’ status

So, how does a UK national who has been living and working in Poland for several years make sure that their ‘withdrawal agreement beneficiary’ status is recognized? The best way is to obtain a special residence registration certificate dedicated to UK nationals. UK nationals who meet the conditions mentioned in the previous paragraph can apply for this certificate at a regional government office (urząd wojewódzki); in fact they are obliged to do so by the end of 2021 (failure to apply within the deadline does not strip one of the ‘withdrawal agreement beneficiary’ status, but it is a petty offence punishable with a fine). The certificate officially confirms that its holder has the ‘withdrawal agreement beneficiary’ status.

However, the possibility to obtain residence registration certificate discussed above has only been in place since the beginning of January 2021, so most withdrawal agreement beneficiaries in Poland do not have their certificates yet (and many have not even applied). To prove their ‘withdrawal agreement beneficiary’ status before obtaining the certificate, they need to be able to demonstrate with other documents that they had resided in Poland up until the end of the transition period, that their stay had been legal, and that they have continued to reside in Poland ever since. Demonstrating this may be difficult in practice. Therefore, it is recommended to not defer applying for the residence registration certificate until later in 2021, but to do it as soon as possible.

Residence registration certificate is not the end of the story
 
It should be noted, though, that obtaining the residence registration certificate does not clarify the withdrawal agreement beneficiary’s status in Poland once and for all. The residence registration certificate does not grant any rights in and of itself – it just confirms the rights following directly from the law. This means, on one hand, that holding the certificate is not necessary to enjoy the ‘withdrawal agreement beneficiary’ status, but, on the other hand, that holding the certificate does not prevent one from losing this status – and one can lose it (in principle by being absent from Poland for at least six months in a year). This has another important consequence – after six months from obtaining the residence registration certificate, its holder cannot reliably use it to prove (e.g. to a prospective employer in Poland) that they still have the ‘withdrawal agreement beneficiary’ status, unless they are also able to prove that they have not left Poland since for longer than six months. The problem only subsides after five years of stay in Poland – at that point one gains right of permanent stay which takes much longer to lose.

Visiting Poland in business – short term assignments and business trips

What does this mean for UK nationals who live and work in UK, and only temporarily travel to Poland in connection with their work duties, without entering into any local employment with a company in Poland?

Since these persons do not reside in Poland, they cannot claim the ‘withdrawal agreement beneficiary’ status. Accordingly, they fall under the general rules for third-country nationals, including the visa requirement and the work=permit requirement. Importantly, the work permit requirement is irrespective of whether the UK national’s activities in Poland are performed for the benefit of an entity based in Poland and whether any remuneration for these activities is paid in Poland. The visa is necessary only in case of stays exceeding the 90-day visa-free limit (counted across the entire Schengen area), but the work permit will typically be required for any visits exceeding in total 30 days in a rolling six-month period (in some cases 30 days within a calendar year). If the UK national’s activities in Poland qualify as provision of a service to a client in Poland, then a work permit will be required from day one (subject to some further exceptions).

One notable exception to the above concerns UK nationals posted to Poland by their UK employers before the end of the transition period, whose postings continue into 2021. Even though the EU-UK withdrawal agreement does not directly confer any rights on posted workers, their status in Poland is regulated by the Polish law adopted to respond to the expiry of post-Brexit transition period. In accordance with this law, these individuals have also retained their right to stay and work in Poland, and should apply for an appropriate certificate by end of 2021.

Time will show how practice develops

As of yet, the post-transition period rules have only been in force for a short time. As much as the legal rules on paper appear clear, it is to be seen how Polish authorities are going to approach individual situations, and what form of proof they will rely on to determine whether one has right to work in Poland or whether one requires a work permit. Observing this practice and adapting to it is going to be important for Polish companies who have or intend to have UK nationals on their payroll, but also to UK companies who intend to send their workers to Poland on assignments or business trips.