No general ban on dual citizenship under the Act on Polish citizenship from 1920
In the judgment of December 19, 2022 (II OSK 2095/21), the Supreme Administrative Court stated that the Act of January 20, 1920 on the citizenship of the Polish State did not prohibit dual citizenship. The Court emphasized that such an interpretation of the provisions of the aforementioned Act, which assumes the loss of Polish citizenship in the event of simultaneous acquisition of Polish and foreign citizenship, or subsequent acquisition of Polish citizenship by a foreign national, should be considered unacceptable.
The cited judgment was delivered in a case concerning the applicant from Argentina. He applied for confirmation of his Polish citizenship, which he derived from his maternal grandfather. However, in the course of the administrative procedure it was questioned whether the applicant's mother had Polish nationality. She was a child out of wedlock and acquired Argentine nationality at birth, in accordance with the jus soli principle in force in Argentina. The applicant's grandparents (his mother's parents) married in 1934 - a few years after her birth - and recognized her as their legitimate child upon marriage. Due to the fact that pursuant to Art. 4 point 2 of the Citizenship Act of 1920, Polish citizenship was acquired i.a. by recognition or entitlement (parents' marriage), the complainant argued that his mother had acquired Polish citizenship from her father. In the course of the examination of the case, however, doubts arose as to whether it was possible to have dual citizenship under the 1920 Act, taking into account the wording of Art. 1 (“A Polish citizen may not be a citizen of another country at the same time”) and Art. 11 point 1, according to which the loss of Polish citizenship occurs through the acquisition of foreign citizenship.
In the case in question, the Supreme Administrative Court stated that the interpretation of the provisions of the Act of 1920 does not give grounds to conclude that it did not allow any cases of dual citizenship. Art. 11 point 1 directly indicates that the subsequent acquisition of foreign citizenship results in the loss of Polish citizenship. However, there is no regulation that would provide for the loss or expiry of Polish citizenship of a person who previously acquired foreign citizenship or who acquired Polish and foreign citizenship at the same time. Therefore, regardless of whether it is assumed that the recognition of the child or the entitlement to acquire citizenship by the child has an effect ex tunc or ex nunc - i.e. whether in the present case the complainant's mother acquired Polish citizenship simultaneously with Argentinian citizenship or later - there are no grounds to state that she lost Polish citizenship by the mere fact of having a second citizenship.
Arguing its thesis, the Supreme Administrative Court cited and shared the position of the court of first instance, according to which the Act of 1920 directly provided for the requirement to prove the lack of foreign citizenship in order to obtain Polish citizenship in some cases - this was the case, for example, in the case of children of unknown parents who were born or found on the territory of the Republic of Poland. Therefore, since the Act did not introduce such a requirement for obtaining Polish citizenship by way of recognition or entitlement, an extensive interpretation should not be applied in this respect, and thus a general ban on dual citizenship cannot be assumed.
In the justification of the judgment, the Supreme Administrative Court also pointed out that the exclusion of the possibility of having dual citizenship cannot be found in the wording of Art. 1 of the Act of 1920, which provided that a Polish citizen may not be a citizen of another country at the same time. According to the position adopted in the doctrine, the meaning of this provision lies in indicating that a person with Polish and foreign citizenship will be treated under Polish law only as a Polish citizen, i.e. that having a foreign citizenship may not lead to exemption from the obligations arising from being a Polish citizen, i.e., for example, from the obligation of military service. However, the purpose of this provision was not to prohibit dual nationality.
The court also quoted the content of the Circular of the Minister of Internal Affairs of 1925 entitled "Citizenship of persons born and naturalized in America", according to which situations are inevitable when the same person acquires the citizenship of two countries at the same time on different terms - jus sanguinis and jus soli. The provisions of the Circular directly indicated that persons who acquired Polish citizenship in one of the ways specified in Art. 4 points 2-5 of the Citizenship Act of 1920, "are Polish citizens, although they are American citizens by birth." The court found that there were no obstacles to considering the content of the Circular as an interpretative guideline in the present case, even though it concerned a person with Argentinian and not American citizenship.
To sum up, it is wrong to assume that dual citizenship was prohibited under the Polish Citizenship Act of 1920. A literal interpretation of Art. 11 point 1, as well as a teleological and historical interpretation of the entire Act of 1920.
Justyna Dabrowska
