Migrant & Griffin Kancelaria Prawna | Business activity vs. residence card – Is being a prokurent sufficient to obtain legalization of stay?

In the structures of Polish companies, especially capital companies, the function of a prokurent (commercial proxy) is often encountered. This is a person endowed with broad power of attorney to represent the company. It happens that foreigners are also appointed as prokurents. The question then arises: can merely performing the function of a prokurent in a Polish company constitute an independent basis for a foreigner to obtain a temporary residence permit (residence card) in Poland?

Who is a prokurent in polish law?

Before answering the main question, let’s clarify who a prokurent is. Prokura is a special type of commercial power of attorney that can be granted by an entrepreneur (e.g., a limited liability company, joint-stock company) subject to mandatory entry in the KRS register of entrepreneurs.

Scope of Authority: A prokurent has very broad powers – they can perform judicial and extrajudicial actions related to running the enterprise. Their powers are broader than those of an ordinary attorney-in-fact.
Registration: Granting and expiration of prokura are subject to mandatory notification to the National Court Register (KRS).
Difference from a Management Board Member: A prokurent is not a member of the company’s governing body (like the management board). They act as an attorney-in-fact, representing the company externally according to the authority granted, while the management board manages the company’s affairs and bears responsibility for them.

Bases for granting temporary residence permits

The Act on Foreigners provides for a number of different grounds on which a foreigner can apply for a temporary residence permit in Poland. The most common include, among others:

Performing work (based on a work permit, declaration, or being exempt from this obligation).
Conducting business activity (as a natural person running a sole proprietorship or, e.g., a partner in a company meeting specific conditions).
Higher education studies.
Family reunification.
Other circumstances justifying the stay.

Each of these grounds requires meeting specific, legally defined conditions.

Is the function of prokurent itself a basis for obtaining a residence card?

The answer to this question is: usually NO. Merely performing the function of a prokurent in a Polish company does not constitute an independent and sufficient basis for applying for a temporary residence permit in Poland.

Why?

It is not “conducting business activity”: A temporary residence permit for the purpose of conducting business activity is intended for individuals who actually run their own business (e.g., JDG) or, for example, are partners in companies and meet income/employment criteria. A prokurent acts as the company’s attorney-in-fact, not as an entrepreneur running their own business in the sense of these regulations.
It is not automatically “performing work”: A temporary residence and work permit (the so-called single permit) is linked to having an employment contract, mandate contract, or other contract forming the basis for performing work. Prokura itself is a power of attorney and does not necessarily involve any of these contracts. Of course, a prokurent can be simultaneously employed by the same company under an employment or mandate contract, but then it is this contract (not the prokura) that forms the basis for applying for a temporary residence and work permit.
Lack of a separate legal basis: The Act on Foreigners does not list performing the function of a prokurent as an independent basis for granting a temporary residence permit.

So what are the options for legalizing a prokurent’s stay?

Since the function of prokurent itself is not sufficient, a foreigner performing this role must have another, independent legal basis for staying in Poland. Most often, it will be one of the following situations:

Simultaneous employment in the company: The prokurent is also an employee of the company (under an employment contract) or its contractor (under a mandate contract). In this case, they can apply for a temporary residence and work permit based on this contract. Prokura is then an additional function, not the basis for residence.
Simultaneously being a shareholder: The prokurent is a shareholder of the company and meets the conditions (income, employment, etc.) for obtaining a temporary residence permit for the purpose of conducting business activity.
Other grounds for residence: The prokurent may legalize their stay on a completely different basis, e.g., as a spouse of a Polish citizen (residence permit based on marriage), a student, or a holder of a permanent residence permit or EU long-term resident status.

Prokurent and work permit

It is also necessary to distinguish the issue of residence from the issue of a work permit. Being a prokurent (as an attorney-in-fact) does not automatically require a work permit. However, if performing this function involves actually performing work under a contract (employment, mandate) (and the person is not exempt) or if the foreigner stays in Poland in connection with performing this function for a period requiring a permit (usually > 6 months within 12 months), then obtaining a work permit (or having a status exempting from this obligation) may be necessary – but this arises from the nature of the activities performed or the length of stay, not from the mere fact of being a prokurent.

Scenario: foreigner appointed as prokurent

A Sp. z o.o. wants to appoint Mr. Lee, a citizen of South Korea, as a sole commercial proxy (prokurent samoistny). Mr. Lee is to represent the company in contacts with Asian partners, often traveling, but also plans to spend more time in Poland.

The company adopts a resolution granting prokura to Mr. Lee and registers him in the KRS.
The mere registration as a prokurent in the KRS does not grant Mr. Lee the right to reside in Poland.
For Mr. Lee to legally reside and work in Poland longer than allowed by, e.g., visa-free movement or a short-term visa, the company decides to additionally hire him under an employment contract for the position of, e.g., “Director for Asian Market Development.”
The company must obtain a Type A work permit for Mr. Lee (Korea is not on the list for declarations or exemptions, so a labor market test is likely needed).
Based on the obtained work permit, Mr. Lee obtains a national visa type D for the purpose of work at the Polish consulate in Seoul.
After arriving in Poland, Mr. Lee (with the employer’s support) applies for a temporary residence and work permit (single permit) based on his employment contract.
His function as a prokurent is an additional role in this arrangement, but it is the employment contract and the residence permit obtained on its basis that legalize his presence and professional activity in Poland.

Summary for prokurents and companies

Appointing a foreigner as a prokurent is possible, but it does not constitute an independent basis for obtaining a temporary residence permit in Poland. A foreign prokurent must have another valid residence title, most often related to performing work under a contract, conducting business as a partner, family status, or another purpose of stay. A company appointing a foreigner as a prokurent should ensure that their stay in Poland is or will be legalized on an appropriate, independent basis.

Need to clarify a prokurent’s status?

If you are a foreigner appointed as a prokurent, or a company planning such an appointment, and have doubts about the legalization of stay or work, our law firm can help:

We will conduct an analysis of the foreigner’s legal situation.
We will indicate available and appropriate paths for legalizing stay and work.
We will assist in preparing and submitting applications for relevant residence and work permits.

(Please remember that this article is general and informational. Issues of legalizing the stay and work of foreigners are complex and require individual legal assessment based on current regulations, particularly the Act on Foreigners.)