As announced in our last post, we want to share with you some first-hand information on work and residence issues. It’s based not only on legal provisions and acts but most importantly, on how the rules are being interpreted and implemented in practice. Especially when it comes to the Border Guard’s practice and approach.
Below you can read a couple of things that we were assured by one of the Border Guard’s officer dealing every day with foreigners and their employment issues.
CAN YOU APPLY FOR A WORK AND RESIDENCE PERMIT WHILE HOLDING A TOURIST VISA?
No matter what kind of tourist visa you have, whether it’s short-term or long-term, issued by the Polish embassy or not, you won’t have any chance to get a residence permit. What may happen if you decide to submit the application?
There are two scenarios. Either you’ll get rejected after your case is properly processed, or the application will be canceled without considering, and without the right to appeal.
WHAT THE IMMIGRATION OFFICE SAYS
In the Act on Foreigners (Article 99.1, paragraph 2) you can read what types of visa are not accepted to apply for a work and residence permit. It’s a Schengen visa issued for “humanitarian reasons or business of the state or international obligations”. As there is no mention of a tourist visa, it suggests that you can freely submit an application even with a tourist visa in your passport. That’s what we’ve heard many times consulting different Immigration Offices. The reason is that not only they have to abide by the Act on Foreigners, but they also have to obey the commands of the Border Guard.
WHAT THE BORDER GUARD SAYS
Not everyone knows that the Act on Foreigners isn’t the only one that regulates these matters. The Border Guard’s approach is based on the Act on Promotion of Employment and Labour Market Institutions. Article 87.1, paragraph 12 says: “A foreign person may perform work in the territory of the Republic of Poland if he or she holds a work permit and visa, except for visas issued for the purpose of tourism, temporary protection, humanitarian reasons, business of the state or international obligations.”
That’s one of two reasons why you may be stopped and interviewed by the Border Guard shortly after submitting the application.
Another reason is so-called “misusing the visa”. It happens when the declared purpose of visit differs significantly from your actual purpose of stay. For example, it occurs if you got a short-term tourist visa to Spain and the next day after coming to Europe you apply for a Polish work permit. As we were informed directly by the Border Guard officer, it has become a massive practice in the Schengen zone and all such attempts of evading the law will be regularly combated by massive controls of workplaces.
We were assured that it’s not possible to change any type of tourist visa into a work and residence permit. Since some time we’ve been receiving a lot of inquiries about refusals due to these particular reasons. We’ve also heard that someone got the permit even though he applied on a tourist visa.
The conclusion is: you can never be sure what happens in your case. Very often what seems to be illegal becomes legal and vice versa, what applies in one office does not in another. Even the two crucial offices handling foreigners matters can’t cooperate and miss coordination between each other. You can get two contradictory opinions on the same matter from your local Immigration Office and Border Guard officers.