A breakthrough in the cases of married daughters with dual citizenship under the Polish Citizenship Act of 1920
According to one of the latest judgments of the Supreme Administrative Court (judgment of December 19, 2022 (II OSK 2095/21), not all married daughters of Polish citizens who, under the Act on the citizenship of the Polish State of 1920, had dual citizenship during their minors, lost their citizenship Polish citizenship upon reaching the age of majority. This effect did not occur in the case of daughters who acquired Polish citizenship later than foreign citizenship or who obtained Polish and foreign citizenship simultaneously (usually at the moment of birth).
It can therefore be argued that the current case law distinguishes the citizenship situation of minor daughters under the Citizenship Act of 1920 into three categories:
- - illegitimate daughters - their citizenship did not depend on the father's citizenship, therefore they were not subject to protection under Art. 13 of the Act in question, so by acquiring foreign citizenship when they were minors, they lost the Polish citizenship obtained from their mother,
- - married daughters who obtained foreign citizenship later than Polish citizenship - lost their Polish citizenship upon reaching the age of majority (with suspensive effect),
- - legitimate daughters who obtained Polish citizenship simultaneously with a foreign citizen or later - did not lose their Polish citizenship upon reaching the age of majority.
The Supreme Administrative Court commented on the situation of married daughters who obtained foreign citizenship later than Polish citizenship in its judgment of April 27, 2022 (II OSK 1648/19). The court then agreed with the view that had been present in the jurisprudence for years, that under the Act on the Citizenship of the Polish State of 1920, married daughters of Polish citizens who acquired another citizenship when they were minors lost their Polish citizenship upon reaching the age of majority.
The cited judgment was passed in a case involving an applicant from Germany who sought confirmation of his mother's Polish citizenship. The applicant's mother acquired Polish citizenship at birth, and in 1948, before reaching adulthood, she also obtained Israeli citizenship. In the administrative and administrative court proceedings, it was assumed that, in accordance with the provisions of the Act on Polish Citizenship of 1920, as a result of acquiring foreign citizenship, the complainant's mother lost her Polish citizenship. The moment of loss of Polish citizenship was assumed to be the moment when a woman reached the age of majority, because then her citizenship ceased to depend on the citizenship of her father in accordance with the principle of uniformity of family citizenship derived from Art. 13 of the said Act. As indicated by the Supreme Administrative Court in the justification of the judgment: "(...) upon reaching the age of majority, it was up to her (and not her parents) to refer to the grounds for losing Polish citizenship." The loss of Polish citizenship therefore had a suspensive effect and occurred later than the acquisition of foreign citizenship. The court rejected the claims contained in the cassation appeal, according to which a person who acquired foreign citizenship as a minor (when his father's continued possession of Polish citizenship was guaranteed by the principle of uniformity of family citizenship) should not lose Polish citizenship, even if upon reaching adulthood the status her citizenship ceased to depend on her father's citizenship, and the "protection" this provided expired. The Supreme Administrative Court's judgment emphasized that the principle of losing Polish citizenship after obtaining foreign citizenship was treated strictly and if there was an exception to it for persons who acquired foreign citizenship as minors, it would be explicitly mentioned in the act.
In the light of the above judgment, it should be assumed that under the Act of 1920, legitimate daughters of Polish citizens who acquired foreign citizenship when they were minors lost their Polish citizenship when they turned 18. However, this ruling only applies to situations where the married daughter acquired foreign citizenship later than Polish citizenship. On this basis, it can be concluded that the suspending effect of acquiring foreign citizenship in the form of loss of Polish citizenship upon reaching the age of majority did not occur in the case of every married daughter with dual citizenship, but only in the case of one who was first only a citizen of Poland and then also of another country.
However, in the matter of married daughters who acquired Polish citizenship later from a foreign citizen or simultaneously with it, the Supreme Administrative Court issued a judgment of December 19, 2022 (II OSK 2095/21), which expressed the opinion on the lack of a general ban on having dual citizenship under governed by the Act on Polish Citizenship (commented on our website in August 2023). In the judgment in question, the court explicitly stated that: "In order for the condition for the loss of Polish citizenship to be fulfilled, it was first necessary to "Polish citizenship and then foreign citizenship." Therefore, the loss of Polish citizenship did not occur when a person acquired citizenship of two countries at the same time (at the moment of birth on the basis of blood law and land law) or when a citizen of a foreign country later acquired Polish citizenship.
Moreover, the court also pointed out that from the norm contained in Art. 13 of the Act of 1920, there is no order to apply the principle of suspending the effect of loss of citizenship in this case. Therefore, it should be stated that the simultaneous acquisition of foreign and Polish citizenship by a minor or the acquisition of Polish citizenship after foreign citizenship does not result in the loss of Polish citizenship either with immediate effect or under a suspensive condition - after reaching the age of majority.
The judgment in question is extremely important in matters of Polish citizenship of minor daughters of Polish citizens who acquired foreign citizenship and reached the age of majority when the 1920 Act was in force. In many situations, when the descendants of these women derived their Polish citizenship from them and applied for confirmation of this fact, they were met with negative decisions - it was assumed that in situations where a minor acquired foreign citizenship, she absolutely lost her Polish citizenship with a suspensive effect, without distinction. on the order of acquiring Polish and foreign citizenship. According to the view currently dominant in the jurisprudence, daughters of Polish citizens, unlike sons, were not protected from the loss of Polish citizenship upon reaching adulthood by the obligation to perform military service. Therefore, the indication that the effect of losing Polish citizenship depends on whether foreign citizenship was acquired earlier, later or simultaneously with Polish citizenship is a breakthrough in the situation of minor daughters of Polish citizens.
In most cases, minor children of Polish citizens obtained Polish citizenship at the same time as foreign citizenship - at the moment of birth (one citizenship based on ius soli, the other - ius sanguinis). According to the latest case law, they did not lose their Polish citizenship in this situation, so their descendants have a chance to apply for confirmation of Polish citizenship on this basis.
Justyna Dabrowska
