Citizenship of underage wedding daughters and the judgment of the Supreme Administrative Court of 27 April 2022 (file reference number II OSK 1648/19)
While the Act of 20 January 1920 on the Citizenship of the Polish State was in force (Journal of Laws No. 7, item 44, as amended, hereinafter referred to as "the Act on Polish Citizenship"), the loss of Polish citizenship occurred, inter alia, by acquiring foreign citizenship. The minor wedding daughters of the father who had Polish citizenship were in a specific situation. By birth, they acquired their father's citizenship, and when their father lost Polish citizenship during their minority, the wedding daughter, aged up to 18, also lost it. Thus, the citizenship of the father and the minor wedding daughter was, in a way, connected.
The situation becomes even more complicated when the minor wedding daughter naturalized in another country during her minority. Specifically, it concerns wedding daughters born in the years from January 31, 1920 to January 18, 1933. The aforementioned women born in this period obtained the age of majority during the validity of the Act on Polish citizenship. The moment of reaching the age of majority was, as mentioned above, crucial, because it was then that the citizenship of the wedding daughter ceased to depend on the citizenship of her father. Women born after January 19, 1933, reached the age of majority already when the Act of January 8, 1951 on Polish citizenship (Journal of Laws No. 4, item 25) was in force, which changed their legal situation. Therefore, this situation did not apply to them (except for the earlier death of their father).
The legal situation of wedding daughters born between January 31, 1920 and January 18, 1933 was analyzed by the Supreme Administrative Court. In the judgment of April 27, 2022 (file reference number II OSK 1648/19), the court indicated that the minor wedding daughter whose father was a Polish citizen and who had naturalized in another country while she was still a minor, lost Polish citizenship. upon reaching the age of majority, i.e. 18 years of age. According to the court, the moment of acquiring foreign citizenship did not have to coincide with the moment of losing Polish citizenship. Thus, the loss of Polish citizenship could also take place when the citizenship of the wedding daughter was made independent of the citizenship of her father. This resulted, in the Court's opinion, from the principle of exclusivity of Polish citizenship expressed in Art. 1 of the Polish Citizenship Act.
One cannot agree with the above argumentation. It is contrary to the linguistic interpretation of the provisions. The regulations provided for the loss of Polish citizenship by women as a result of acquiring Polish citizenship. This rule did not apply to minor wedding daughters whose nationality was linked to that of the father. There was an exception - the loss of Polish citizenship did not occur at the moment of naturalization of the minor wedding daughter. Upon reaching the age of majority, Polish citizenship was not lost, because it was not the moment when foreign citizenship was acquired.
Secondly, the Supreme Administrative Court accepted the situation that many years could have elapsed from the acquisition of foreign citizenship to the loss of Polish citizenship (even 18 if the wedding daughter acquired foreign citizenship at the time of birth on the basis of ius salt). Such an interpretation of the court is contrary to the constitutional principle of the permanence of citizenship. No one may be deprived of Polish citizenship without a clear legal basis. Meanwhile, the loss of Polish citizenship many years after the event should be treated as depriving it. Especially if someone had them from birth. Admittedly, the provisions applicable on the date of the incident apply, but if there is more than one possible interpretation of these provisions, the interpretation that complies with the law currently in force, in particular the Constitution, should be chosen. Therefore, when interpreting the local regulations, the current principle of the permanence of citizenship cannot be ignored
The court's ruling is also incorrect for one more reason - it indicates that the situation of wedding daughters is worse than that of illegitimate daughters in the case of acquiring foreign citizenship at the time of birth. It is necessary to recall a very important act of interpreting the law, which is crucial for the Polish Citizenship Act - Circular No. 18 of the Minister of the Interior of July 9, 1925 "Citizenship of persons born and naturalized in the USA". The circular contains the official, official interpretation of the law that is still followed by administrative bodies. According to the Circular, the children of Polish emigrants who were born in the USA after 1920 and were legally granted foreign citizenship upon birth, did not lose their Polish citizenship. Therefore, it is an exception to the rule that the acquisition of foreign citizenship resulted in the loss of Polish citizenship, if the person acquiring citizenship was not subject to military service. In practice, this means that illegitimate daughters acquired Polish citizenship at the time of birth. When they reached the age of 18, nothing happened, because they did not lose their father's protection, which they never had. Thus, it can be stated that the interpretation of the Supreme Administrative Court leads to illogical conclusions as to whether it is possible to justify the differentiation of the situation of married and illegitimate daughters with regard to Polish citizenship.
By the way, the above-mentioned The circular also applies to other countries where ius salt was in force (acquisition of citizenship by birth on the territory of a given country). The impact of the Circular is limited by the duration of the Polish Citizenship Act, i.e. from January 31, 1920 to January 19, 1951. The Circular does not apply to citizenship laws in force after January 19, 1951, because they did not condition the loss of Polish citizenship upon acquisition foreign citizenship.
Finally, one more key issue needs to be addressed, namely the issue of women's military service. The Act on Polish Citizenship shows that persons obliged to perform military service do not cease to be Polish citizens also when they have acquired citizenship of another country. In accordance with the Act of September 9, 1938 on universal military duty (Journal of Laws No. 25, item 220, as amended), including the decrees of February 19, 1945 on amending the Act of April 9, 1938 on universal military duty (Journal of Laws of 1945, No. 8, item 37) and of October 27, 1943 on voluntary service of women (Journal of Laws of 1943, No. 11, item 34) , women were subject to the general obligation of auxiliary military service. Initially (i.e. in the period from September 2, 1938 to March 19, 1945), women were subject to compulsory military service to a limited extent. This obligation applied to women who, in times of peace, had completed military training for auxiliary military service or in times of war, mobilization, and in times of state emergency, volunteered for auxiliary military service and were deemed fit to perform this service. On the other hand, from March 20, 1945, the duty of auxiliary military service was a common burden for women. Women's auxiliary military service was identical to men's military service. In accordance with par. 16 of the Ordinance of the Minister of National Defense of December 14, 1942, issued in consultation with the Ministers of Foreign, Interior and Social Welfare, on the voluntary enlistment of women for auxiliary military service in the Polish Armed Forces (Journal of Laws No. 11, item 25) "auxiliary military service performed by women is tantamount to active military service and shall be credited on an equal footing with it in all cases provided for or provided for in laws and regulations after returning to the country ”. This meant that a woman who was in auxiliary military service did not lose Polish citizenship.
The age from which women were subject to the above-mentioned is also an important issue. service. Women's auxiliary military service included women aged:
- 1) from 19 to 45 years of age in the period from September 2, 1938 to November 3, 1943,
- 2) from 18 to 45 years of age in the period from November 4, 1943 to March 19, 1945,
- 3) from 19 to 45 years of age in the period from March 20, 1945 to May 28, 1950,
- 4) from 18 to 45 years of age in the period from May 29, 1950.
It should be emphasized that only reaching a certain age (depending on the period: 18 or 19) was the moment when a woman began to be subject to military service. In the periods indicated in point 2 and 4, the woman, upon reaching the age of majority (and thus becoming independent from the status of her father's citizenship), also began to be subject to military service. Thus, in accordance with the exception indicated in the Act on Polish Citizenship, she was protected against the loss of Polish citizenship even if she naturalized in a foreign country. This applies to wedding daughters attaining the age of majority in the period from November 4, 1943 to March 19, 1945 and after May 29, 1950.
In another situation, there were married daughters who attained the age of majority in the periods from September 2, 1938 to November 3, 1943 and from March 20, 1945 to May 28, 1950. the woman was not included in the military service, so she was not protected by the exception specified in the provisions of the Act on Polish Citizenship. However, this did not result in an automatic loss of Polish citizenship, which was indicated in the arguments presented in this article.
