In a recent case, we managed to break through the paradigm of automatic loss of Polish citizenship if foreign citizenship is acquired. The case involved a citizen of Argentina (the grandson of Polish immigrants) who was denied confirmation of Polish citizenship by the Minister of Interior and Administration. The authority found that although the client’s mother was the holder of Polish citizenship via her father, she lost it when she turned 18 because at that time she also held Argentinian citizenship, acquired at birth.
Acquisition of Argentinian citizenship under jus soli and Polish citizenship under jus sanguinis
Our client was born in the 1960s in Argentina as the grandson of Polish immigrants from the interwar period. His maternal grandfather held a Polish passport issued in 1927. The client’s mother was born out of wedlock, and at birth (in 1930) she acquired Argentinian citizenship under the “right of land” (jus soli), i.e. by being born in the territory of that country. However, in 1934 she also acquired Polish citizenship under the “right of blood” (jus sanguinis), as a result of her parents’ marriage and acknowledgement of paternity by her father (a Polish citizen).
When the client sought confirmation of his Polish citizenship from the Minister of Interior and Administration, the minister concluded that although the applicant’s mother had held Polish citizenship acquired from her father, she lost it when she reached the age of majority. According to the Polish administrative authorities, Polish citizenship was lost whenever a Polish citizen acquired citizenship of another country. Since the mother lost her Polish citizenship upon reaching majority in 1948, it could not be acquired by her later-born son.
The problematic principle of exclusivity of Polish citizenship under the 1920 act
Art. 11(1) of the Polish Citizenship Act of 20 January 1920 provided that Polish citizenship was lost by acquiring foreign citizenship. The authorities interpreted this provision strictly, consistent with Art. 1 of the act, pursuant to which a Polish citizen could not simultaneously be a citizen of another state.
In this case, the Minister of Interior and Administration found (as the governor of Masovia Province had previously found) that the loss of Polish citizenship occurred on the day the client’s mother attained the age of majority. This was tied to giving primacy to the principle of linking the child’s citizenship status with the citizenship status of the parent from whom the child acquired Polish citizenship. That rule was deduced by the authorities from Art. 13(1) of the 1920 act, according to which granting or loss of Polish citizenship extends to the wife of the person acquiring or losing Polish citizenship, and also to his children under the age of 18.
In other words, in the case discussed here, the authorities came to the conclusion that as a person born in a country whose citizenship is acquired by the “right of land,” as the daughter of a Polish citizen the client’s mother acquired Polish citizenship after her father only for the period in which the citizenship status of parent and children was linked, i.e. until the age of majority. This position was approved by the Province Administrative Court in Warsaw (judgment of 2 July 2018, case no. IV SA/Wa 1212/18, unpublished). This interpretation of the 1920 act was also upheld by the Province Administrative Court in Warsaw in the judgment of 15 October 2020 (case no. IV SA/Wa 1312/20, unpublished), denying our firm’s appeal.
However, the same court reconsidered its own judgment after reviewing the cassation appeal brought by our firm. In the judgment of 21 May 2021 (case no. IV SA/Wa 1312/20), agreeing entirely with the arguments we raised, this court set aside its judgment and the decision of the Minister of Interior and Administration refusing to confirm that our client held Polish citizenship. As the court in Warsaw pointed out in justification of its new ruling: “The court shares the position of the appeal that despite the wording of Art. 1 of the 1920 act, there is no basis for assuming that the act consistently refused to admit any cases of a person holding both Polish citizenship and citizenship of a foreign country, and that any case of coexistence of such citizenship must inevitably have led to the loss of Polish citizenship. While it is indisputable under Art. 11(1) of the act that such an effect did indeed occur in a situation in which the acquisition of foreign citizenship occurred after the acquisition of Polish citizenship, there are no sufficient grounds to infer that a situation in which (a) Polish citizenship and foreign citizenship were acquired simultaneously, or alternatively (b) Polish citizenship was acquired later by a citizen of a foreign country, would lead automatically to simultaneous expiration (loss) of Polish citizenship so acquired (or, alternatively, that simultaneous or earlier acquisition of foreign citizenship would constitute an obstacle to acquiring Polish citizenship despite fulfilment of the statutory prerequisites for its acquisition).”
Judgment of the Supreme Administrative Court
This view on the issue of “temporary citizenship” of minors under the Polish Citizenship Act of 1920 was shared by the Supreme Administrative Court, which dismissed the minister’s cassation appeal in the judgment of 19 December 2022 (case no. II OSK 2095/21).
Thus, ruling in this case, the Supreme Administrative Court held that the principle of the exclusivity of Polish citizenship under the Polish Citizenship Act of 1920 did not imply the absolute impermissibility of retaining Polish citizenship and another citizenship.
The court favoured a narrow interpretation of Art. 11(1) of the 1920 act, under which it applies only to cases in which a person already a Polish citizen subsequently acquired citizenship of a foreign country. As the court stated in its decision: “Since the Citizenship Act of 1920 did not prohibit concurrently holding Polish citizenship and foreign citizenship, unless the prerequisites for loss of Polish citizenship set forth in Art. 11 of the act were fulfilled, an interpretation of Art. 11(1) of the Citizenship Act of 1920 which assumes the loss of Polish citizenship in the situation of simultaneous acquisition of Polish and foreign citizenship, or subsequent acquisition of Polish citizenship by a citizen of a foreign state, should be considered unacceptable.”
Ultimately, the Supreme Administrative Court confirmed that Art. 13 of the Polish Citizenship Act of 1920 only has the effect that the granting or loss of Polish citizenship by father and husband resulted in acquisition or loss of this citizenship by his wife and children issued from the marriage up to the age of 18. Therefore, the principle of suspension of the effect of loss of citizenship cannot be derived from this provision. Consequently, the court rejected the possibility of inferring from Art. 13 of the Polish Citizenship Act of 1920 the notion that Polish citizenship acquired by minors would serve them only until the age of 18. The effect of a minor with dual citizenship reaching the age of majority was merely to “detach” his or her citizenship status from the father’s status.
Our client is indeed a Polish citizen
Following the position argued by our firm, the administrative courts found that the client’s mother, due to the acquisition of Argentinian citizenship (in 1930) and Polish citizenship (in 1934), did not lose her Polish citizenship when she reached the age of majority (in 1948). Applying these guidelines, the Minister of Interior and Administration overruled the decision of the governor of Masovia Province, issued in the first instance, and confirmed that our client acquired Polish citizenship from his mother at birth and still holds it today. As a result, all his descendants are also Polish citizens and can apply for a Polish passport.
In this case, the paradigm of automatic loss of Polish citizenship in the event of acquiring foreign citizenship, which had been in force in the previous practice of administrative bodies and administrative courts, was broken. This offers a chance to take a fresh look at the citizenship status of the descendants of Polish emigrants.
Stefan Jacyno, adwokat, Private Client practice, Reprivatisation practice, Wardyński & Partners
Marcin Sobkowicz, adwokat, Private Client practice, Reprivatisation practice, Aviation practice, Wardyński & Partners