A missed opportunity to address childhood statelessness in Poland

Katarzyna Przybysławska, Legal Aid Center - Halina Niec
/ 5 mins read

One of the most devastating characteristics of statelessness is that it affects millions of children across the globe. In countries like Poland, where statelessness is not limited to a specific group and its root causes cannot be easily tracked to a well-defined set of circumstances, it is more challenging to pinpoint the factors that put children at risk of stateless.

Photo by Michał Bożek on Unsplash
Photo by Michał Bożek on Unsplash

At first glance the legal framework surrounding children’s status in Poland fulfils all the applicable international human rights standards. Access to birth registration is unrestricted and there are no financial or administrative barriers that could exclude certain categories of children from receiving a birth certificate. There are no marginalised communities who might avoid birth registration or who would face insurmountable obstacles in the process. So why exactly does the issue exist? Why is it that not all children born in Poland are able to enjoy citizenship?

Although the available statistics and other relevant sources of information (such as NGO reports and research reports) do not suggest that there is a widespread problem, gaps remain in law and practice, which put some categories of children at risk of statelessness (you can find more detail about this in the #StatelessnessINDEX country profile on Poland).

A key risk identified in the Polish context occurs if biological parents abandon a child after birth and their personal data has been recorded in connection with the birth of the child. In this situation, the child cannot be registered as having  ‘unknown parents’ so could only be recognised as a Polish citizen if the relevant authority decides that the parents’ citizenship cannot be determined or that both parents are stateless. Practice shows, however, that where a parent’s country of origin has been declared, this is usually seen as sufficient to regard the child as being at least entitled to the citizenship of that country. This reasoning does not take into account how citizenship is acquired nor the legal gravity of determining a child as a foreign national without any guarantees that the country will recognise the child as its citizen and guarantee their rights.

Article 14.2 and Article 15 of the Polish Citizenship Act grants Polish nationality (ex lege) only to children born on Polish territory and foundlings (children found on Polish territory) whose parents are unknown, stateless, or whose citizenship is undetermined. This legal provision is the only situation in Polish nationality law where the ius soli principle is applied. The scope of these provisions does not encompass the important category mentioned above: cases of children born/found in Poland who would otherwise be stateless, for example due to the fact that their parents are legally unable to transfer their nationality or in the situation where the parents are known, but there are other legal or practical obstacles to transferring their nationality. The safeguard, therefore, does not fully encompass the scope of protection afforded by the 1961 Statelessness Convention.

When a newborn child is abandoned in a Polish hospital by a foreign mother, whose name and nationality were recorded (but not verified or documented) by the medical staff, the child is registered with a birth registration act which identifies the mother, but this is not sufficient to register the child with the consulate of the stated country. However, it is sufficient to exclude the child from availing themselves of the safeguard in Articles 14.2 & 15 of the Citizenship Act. This gap means that some children born on Polish territory could remain stateless.. Article 1 of the 1961 Convention on the Reduction of Statelessness, states that “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless”. Poland is not party to the 1961 Convention, but its rules provide a useful reference and establish the international norms for prevention and reduction of childhood statelessness. A similar guarantee is included in Article 6(2) of the European Convention on Nationality.

The only effective way to bridge this gap in Polish law is to amend the applicable provision in the Citizenship Act. In the meantime, some practical steps can be taken to mitigate the adverse effects of the partial safeguard in the law. If a child has been abandoned shortly after birth, and there are no legal means to verify the identity of the mother or parents, the civil registry responsible for registering the birth should record the child as having  “unknown parents”, acting in the best interests of the child who would then be granted Polish citizenship automatically.

In order to address this issue, a lot of work still needs to be done, because statelessness remains largely ignored with virtually no political will to deal with it. When discussing childhood statelessness with Polish stakeholders, the first question that usually comes up is “How is it even possible that a child does not have any citizenship at all?”. This question perhaps is the best summary of the current state of awareness of the issue in Poland, a country with a relatively small number of stateless people, which has not yet acceded to either the 1954 or the 1961 Statelessness Conventions and has signed but not ratified the European Convention on Nationality. The reluctance of the Polish authorities to really understand the problem and its root causes is often justified by pointing out that the numbers are too small to prioritise the issue on the agenda. And since statelessness is perceived as a topic falling under “migration policy” matters, there is no political interest to deal with it.

It is noteworthy that in January 2021, the Inter-ministerial Committee on Migration accepted a document describing the current migration situation in Poland, using it as a reference point to (at last) guide the drafting of a new Polish Policy on Migration. However, it is both symptomatic of the problem and disappointing that this draft Policy makes only one mention of stateless people, and only in the context of implementing readmission agreements in relation to persons without citizenship.

If you would like to learn more about the various aspects of childhood statelessness in Poland, please read the recent legal analysis published by the Halina Nieć Legal Aid Center, and refer to the Statelessness Index country profile on Poland.

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