Loss of Polish citizenship by the mother of an illegitimate child in 1920-1951 (discrepancies in the jurisprudence of courts).
It should be noted that the jurisprudence of courts developed two completely contradictory lines of jurisprudence on how to treat the situation of loss of Polish citizenship by the mother of an illegitimate child (considerations concern the period 1920-1951).
In the light of the provisions (Article 13 of the Act of 1920), it was expressly stated only and exclusively that the loss of Polish citizenship by a husband resulted in the loss of citizenship of other people - that is, his wife and his children. On the other hand, there is no provision stating that the loss of citizenship by the mother of a minor illegitimate child also resulted in the loss of that child's citizenship.
This correct interpretation of the provisions was reflected in many rulings of administrative courts. It is worth mentioning here:
- • Judgment of the Supreme Administrative Court in Warsaw of June 12, 2015, II OSK 2733/13
- • Judgment of the Supreme Administrative Court in Warsaw of September 19, 2017, II OSK 37/16
- • Judgment of the Supreme Administrative Court of 6 March 2019, II OSK 799/17
Moreover, in the judgment of the Supreme Administrative Court in Warsaw on December 19, 2017, II OSK 657/16, it was written that the differentiation of the situation of married and illegitimate children is consistent with EU and international law.
Meanwhile, in recent years, there have been rulings stating that the loss of Polish citizenship by the mother also resulted in the loss of Polish citizenship by her illegitimate child:
- • Judgment of the Supreme Administrative Court of 4 June 2019, II OSK 1938/17
- • Judgment of the Supreme Administrative Court of February 5, 2020, II OSK 3178/17
It should be noted, however, that the justifications of the judgments cited do not contain a broader justification, which would result in a departure from the linguistic interpretation of the Act of 1920. The creation by the courts of new, not provided for by law, grounds for the loss of Polish citizenship had to be considered illegal and unacceptable as such. It can be assumed that this erroneous view arose from the mechanical application of the interpretation of the regulations, which took place in the judgment of the Supreme Administrative Court of 6 May 2015, II OSK 2407/13. Well, in the facts described there, not only the mother of the illegitimate child acquired foreign citizenship, but also her child. This resulted in the loss of citizenship of both mother and child. However, it should be clearly emphasized that the loss of Polish citizenship by an illegitimate child had its independent basis in the acquisition of foreign citizenship by the child. Thus, the loss of Polish citizenship by an illegitimate child was not dependent on the mother's loss of citizenship.
It can be hoped that the discrepancies in the jurisprudence of the Supreme Administrative Court will be eliminated and the interpretation that the illegitimate child's citizenship does not depend on the mother's citizenship will be accepted as binding. Such an interpretation will be relevant for all situations where only the mother acquired foreign citizenship (and thus lost Polish citizenship) and the child did not. Such situations could take place especially during the separation of mother from child, which most often happened during the Second World War
