The HFHR has been calling for a long time to apply the same regulations for all children whose parents stay in Poland legally, irrespective whether they are born in the country or not.
“According to the law, a child born to the parents who have a fixed-term residence permit, will also be granted such a permit, provided it was born in Poland. This right will not be prejudiced by the fact that the child stayed in Poland illegally”, says Karolina Rusiłowicz, a lawyer with the HFHR. “If, however, the child wasn’t born in Poland and stays in Poland illegally within the time when the application for a permit is being processed, the Province Governor may only issue a three-month residence permit on account of its extraordinary family situation”, adds Ms Rusiłowicz. Such a permit is not subject to extension. In consequence, the Vietnamese should leave Poland and apply for a visa.
Yet even when she obtains the visa, it is not the end of her struggle for a legal stay. Following the arrival to Poland, parents are required to apply, on child’s behalf, for a fixed-term permit not later than 45 days prior to the visa expiry date.
“And since parents [in the instant case] have not yet satisfied the requirement of a total two-year stay under temporary permits, there is no legal basis to grant a permit to the child as a family member”, says Ms Rusiłowicz. She explains further that: “The case of a three-year old Vietnamese will be once more examined at the discretion of the Province Governor and under extraordinary circumstances”.
The HFHR takes the view that differentiating the situation of children of parents who stay in Poland legally only on the basis of the minors’ place of birth is utterly unjustified and contravenes the international standards, including the right to a family life, the right of the child to be raised in a family and the right to contact with parents.
