Illegally hired foreigner does not have to be deported
03.11.2011 global mobility | employment
The province governor cannot issue a decision to deport a foreigner who was illegally hired if the hiring is legalised during the course of the deportation proceeding by obtaining the required permits and complying with the applicable procedures.
If an inspection (typically by the State Labour Inspectorate, the Border Guards or the Police) finds that a foreigner is performing work in Poland illegally, i.e. without the required work permit and work visa or other legal grounds to live and work in Poland (such as a temporary residence permit), the foreigner and the employer will face various legal sanctions.
The most severe sanction for the employee—and also for the employer, particularly in the case of skilled staff—is a deportation order, which is issued mandatorily, under Art. 88 of the Act on Foreigners dated 13 June 2003, by the province governor for the place where the foreigner was found to be working illegally. The order is issued by the province governor on his own initiative or upon application by the authority that found the violation. When the deportation order is issued and becomes legally final, it results under operation of law in invalidation of the person’s visa and withdrawal of the temporary residence permit or work permit, if the person held such documents. The foreigner is also required to leave the country by the time stated in the decision, but no later than 14 days after issuance, and is prohibited from re-entering Poland (or applying for a work permit, residence permit or visa) for 3 years after deportation.
Nonetheless, even if a foreigner is found to be working illegally in Poland and the competent authority applies to the province governor for a deportation order, issuance of the order will be prevented, or the decision may be effectively challenged by appeal to the head of the Office for Foreigners, if the foreigner’s hiring is legalised prior to issuance of the decision by obtaining the missing documents.
It is commonly accepted in the case law and by commentators (based on the principle of “objective truth” under Art. 7 of the Administrative Procedure Code) that an administrative authority issuing a decision is required to take into account the factual and legal status as of the date the decision is issued—not the status that was in effect when the proceeding was commenced.
Under this view, if the employee’s status is legalised after the violation is found, but before a decision to deport the employee is actually issued by the province governor, the province governor should refuse to issue a deportation order because there would be no legal or factual grounds for the deportation at that time.
It usually takes several months between the time that an employer is first notified of a planned inspection (or if no notice was given of the inspection, from the discovery of the illegal employment, through issuance of the relevant findings and exhaustion of administrative challenges to the findings) until the application for deportation is filed with the province governor and the province governor finally issues a decision. In practice, this period may be long enough not only to complete the procedure required to obtain the work permit and visa or residence permit (particularly if the papers were already filed before the inspection), but also to prepare the applications and enclosures necessary to obtain the required documents.
It should be stressed, however, that in situations where deportation is prevented by legalising the employee’s status after a violation is discovered, the employer and the employee may still be punished by a fine, which is imposed on the basis of the facts in existence as of the time the illegal employment is found.
Magdalena Świtajska, Employment Law practice, Wardyński & Partners