Employment Gap Discovered Retroactively: Legal Consequences in Temporary Residence and Work Permit Cases in Poland
No statutory definition, but clear legal relevance
Polish law does not contain a codified or statutory definition of the concept of an employment gap (przerwa w zatrudnieniu). No single legal act provides a universal legal definition of this term.
Nevertheless, in proceedings concerning temporary residence permits – in particular temporary residence and work permits (pobyt czasowy i pracę) – this concept functions as a factual and evaluative legal category used by voivodeship authorities when assessing whether the declared purpose of stay (cel pobytu) is actually being fulfilled.
From the authority’s perspective, an employment gap means a factually established period during which the foreign national does not perform work on the basis of a valid work title with the employer indicated as the basis for the residence permit.
In practice, this is not a purely technical HR concept, but an element of the administrative assessment of compliance with immigration conditions.
Legal starting point: obligation to actually pursue the purpose of stay
The key legal principle is the requirement that the declared purpose of stay must exist in reality and be genuinely implemented.
Pursuant to Article 114(1) of the Act on Foreigners (ustawa o cudzoziemcach), a temporary residence and work permit is granted on the condition that the purpose of stay is the performance of work under the conditions specified in the decision.
This leads to a fundamental conclusion:
Work is not a formality – it is the substance of the permit.
If work is not actually being performed, the authority is entitled to assess whether the circumstances that justified granting the permit have ceased to exist, under Article 100(1)(4) of the Act on Foreigners.
For the authority, the following situations are treated as a loss of employment (utrata zatrudnienia) and, consequently, as an employment gap:
- termination of the employment or civil law contract,
- expiry of a fixed-term contract without continuation,
- suspension from work without remuneration,
- expiry of a work permit (zezwolenie na pracę) or employer declaration (oświadczenie) without a new work title.
Employment gap in the employer’s reporting obligations
The concept of przerwa w zatrudnieniu is explicitly used by the legislator in the context of employer obligations.
Under Article 88h(1)(4) of the Act on Promotion of Employment and Labour Market Institutions (ustawa o promocji zatrudnienia i instytucjach rynku pracy), the employer is obliged to notify the voivode, among other things, of:
the occurrence of a break in the performance of work exceeding 2 months.
In this context, an employment gap means a break in the actual performance of work, even if the contract has not been formally terminated (for example: long-term unpaid leave, factual non-performance of work).
This confirms a core administrative principle:
What matters for the authority is actual work performance, not only the formal existence of documents.
Obligations of the foreign national: loss of employment as a critical moment
For the foreign national, the critical legal moment is the loss of employment.
Under Article 119(1) of the Act on Foreigners, the foreign national must notify the voivode in writing within 15 days of losing employment with any employer indicated in the permit.
In addition, Article 119(2) provides a 30-day period to:
- submit a new application, or
- change the basis of stay.
After this period, the authority may initiate proceedings to revoke the residence permit.
In practice, in cases of temporary residence and work permits, loss of employment automatically means loss of the basis for stay, and any employment gap becomes legally relevant.
How authorities assess continuity of employment in practice
In voivodeship practice, continuity of employment (ciągłość zatrudnienia) is assessed not formally, but based on:
- consecutive periods of actual work performance,
- on the basis of a valid work title (contract + work permit / employer declaration / residence and work decision).
Any time periods during which:
- there is no valid work title, or
- no actual work is performed,
are treated as employment gaps.
By contrast, breaks resulting from labour law (annual leave, sick leave, temporary absence while the employment relationship continues) are not treated as employment gaps, because the employment relationship continues and the purpose of stay is formally maintained.
When a break between contracts becomes legally relevant
Not every break between contracts is legally significant for residence proceedings.
A break becomes legally relevant when, during a given period, there is no:
- valid residence title allowing work, or
- valid work title (work permit, employer declaration, or residence and work decision), or
- continuation regime under Article 88g(1a) of the Act on Promotion of Employment.
In the absence of these elements, the authority may treat the period as one in which work was legally impossible or potentially illegal – even if work was not actually performed.
Short technical gaps between contracts with the same employer, provided that:
- the residence title remains valid, and
- work authorization continuity or a transitional regime applies,
are usually not treated as a breach of continuity.
Three different types of “gaps” that must not be confused
1. Employment gap
A break in actual work performance or in the existence of the employment/civil law relationship, even if the residence permit formally remains valid.
2. Gap in work legality
A lack of legal authorization to work under specific conditions (no permit, work outside the scope of the decision, no exemption from work permit requirements).
3. Gap in the basis of stay
Loss of any legal residence title or loss of the declared purpose of stay (for example, loss of employment under a residence and work permit).
These categories may exist separately or cumulatively. Their combination determines the level of legal risk in a specific case.
Retroactively discovered employment gap: why it does not disappear
The fact that an employment gap was not identified immediately does not mean that it has no legal consequences.
In new proceedings (permit extension, permanent residence, EU long-term resident status, citizenship), the authority analyses the full history of stay and employment, including:
- contract dates,
- work permits and decisions,
- ZUS social security records,
- tax settlements (PIT).
Past employment gaps may:
- interrupt continuity of stay,
- call into question the genuine pursuit of the purpose of stay,
- become grounds for refusal or revocation of a permit under Article 100(1)(4) of the Act on Foreigners.
The boundary between strict law and individual risk assessment
A strict legal boundary exists where there is:
- illegal stay,
- illegal work,
- violation of statutory deadlines (15/30 days).
In such cases, room for legal argument is very limited.
Where titles formally existed but the history includes gaps, short work periods, or frequent employer changes, authorities move into individual risk assessment, focusing on:
- stability of the purpose of stay,
- reliability of the foreign national,
- prognosis of future compliance.
Conclusion
An employment gap is not a technical HR issue. It is a legally relevant factor in assessing the lawfulness, continuity, and stability of stay.
It may become decisive years later, even if it did not cause immediate consequences at the time.
This issue marks an objective legal boundary. Beyond it begins an individual risk assessment, where not only the existence of a gap matters, but the entire structure of the foreign national’s stay and employment history.
Ukrainian version of this article
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