Poland - Supreme Administrative Court, case II OSK 189/07

The applicant was born in Poland to a Vietnamese mother. When she was 9 years old a Polish citizen formally recognised her as his daughter, and the local authority subsequently confirmed that she is a Polish citizen by birth. She was growing up as a Polish citizen until another 8 years later the central government authorities invalidated the confirmation of nationality by the local authority, as according to the Polish Citizenship Law changes in parenthood can only lead to acquisition of Polish citizenship if they take place within 1 year of birth. The applicant's arguments related to article 8 ECHR, best interests of the child, as well as long-term presumption of Polish citizenship due to no fault of the applicant, although the court dismissed all arguments.

Case status
Case number
II OSK 189/07
Date of decision
Court / UN Treaty Body
Supreme Administrative Court
Language(s) the decision is available in
Applicant's country of birth
Applicant's country of residence
Relevant Legislative Provisions

Article 8 ECHR

Art. 7 sec. 1 of the Polish Citizenship Act


The applicant was born on 2 December 1989 in Poland, to a Vietnamese mother, with father legally unknown at the time of birth. In 1998 a Polish national declared that the applicants is his daughter and formalised the recognition of paternity through a relevant procedure. In December 1998 a local authority confirmed that the applicant is a Polish national on the basis that one of her parents is Polish.

In 2006 the 8 year old confirmation of nationality by the local authority was revoked, on the basis of violating the Polish Citizenship Act.

Decision & Reasoning

The Court reasons as follows:

“The circumstances of the case under examination leave no doubt as to the fact that the applicant could not have acquired Polish citizenship at the time of birth, because the mother was not a Polish citizen and the father was unknown. Subsequent recognition of the child by a Polish citizen may only be taken into account when determining the child's citizenship if such recognition took place within one year from the date of the child's birth, pursuant to Art. 7 sec. 1 of the Polish Citizenship Act. […]”

The Court alludes to potential statelessness of the applicant resulting from the cancellation of her Polish citizenship by discussing interactions with nationality laws of “the other state”, but does not engage with the issue of statelessness explicitly:

“It should be borne in mind that the Polish Citizenship Act regulates the acquisition of Polish citizenship, but does not regulate the issue of acquisition and loss of the citizenship of the other state. This means that if a child did not acquire Polish citizenship by birth at the time of birth, he or she would have usually acquired a citizenship of another country, and therefore there are limitations specified in the Act on Polish Citizenship about the extent to which subsequent events may cause changes in the child’s acquisition of citizenship. Thus, the assumption made by [the lower instance court] that it is in the best interests of the child to allow changes in the determination of fatherhood to at any time lead to changes in the child's citizenship is not correct. The standpoint of the authority that the applicant did not acquire Polish citizenship by birth should be shared; there were no grounds to declare that the applicant is a Polish national in December 1998 [by the local authority], who committed a blatant violation of the provisions of Articles 4 and 7 of the Polish Citizenship Act.”

The Court also reasons extensively that article 8 ECHR cannot be invoked in matters related to nationality, and that international law supports near-absolute sovereignty of states in nationality matters:

“The allegation of violation of Article 8 of the Human Rights Convention also does not deserve to be taken into account. Article 8 of the Convention protects the privacy of every person by protecting the following personal rights: private life, family life, home life and correspondence. Private life, protected under Art. 8 of the Convention, covers many levels of an individual's life, the physical and mental integrity of an individual (X. and Y. v. The Netherlands, the judgment of the European Court of Human Rights of March 26, 1985, § 22), and cannot be defined exhaustively. […] However, the applicants rights to respect for private and family life should not be liked to a right to be legalised as a Polish citizen on the basis of a decision of a declaratory nature that was issued in clear violation of the law. It should be noted that the provisions of the Convention on Human Rights and additional protocols to the Convention do not guarantee the right to nationality (see the decision of the European Court of Human Rights of 12 January 1999 on the inadmissibility of the complaint in the case of A. Karassev v. Finland). The competence of the state to regulate issues related to citizenship is based on the principle of sovereignty, and is neither questioned under international law nor in practice. Such practice in confirmed in international agreements and jurisprudence. The provision of article 2 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws and the Protocol on the Case of Statelessness, signed at The Hague on April 12, 1930 […] states that determination of whether a person is a national of a certain must be done exclusively in accordance with the laws of that State. Limitations on the state’s freedom to regulate the its citizenship may only be set by means of international agreements, international custom and generally principles of law in the area of citizenship (Article 3 of the Hague Convention). In the judgment of 6 April 1955 in the Nottebohm case, the International Court of Justice (ICJ Reports, 1955, p. 23) also confirmed the exclusive competence of the state in this area, stating that each state determines by law its citizenship and the conditions for its acquisition. National law regulates the exhaustively matters related to citizenship, because the fact of having a citizenship of a given country results in substantive legal consequences in the form of a number of rights and obligations of an individual towards that state, as well as obligations of the state towards an individual.”

“Based on the above, the Supreme Administrative Court found that Art. 8 of the Convention on Human Rights does not protect those aspects of the individual’s life  sphere of an individual's life which are connected to the state’s sovereign right to regulate the principles of acquisition and loss of citizenship, and to interpret those principles and regulations. The right of a foreigner to legitimise a citizenship status in the state of residence, where the citizenship status is a result of an administrative decision issued in gross violation of domestic law regulating the principles of citizenship acquisition, cannot be derived from article 8 of the Convention on Human Rights. Therefore, since matters relating to the possession of citizenship do not fall within the sphere of respect for private and family life, refusal to confirm the applicant's Polish citizenship cannot be assessed in light of unlawful interference with her private and family life as protected under article Art. 8 of the Convention. In other words, a decision which confirmed that there was a gross violation of the provisions of state law on acquisition of Polish citizenship, and which resulted in negation of the applicant’s status as a Polish citizen, where the citizenship was initially confirmed in an administrative act of a declaratory nature, cannot be reviewed for potential violations Art. 8 of the Convention.”

“It should also be established that the applicant's request for the recognition of her right to Polish citizenship based on the existence of genuine, real ties between her and the Republic of Poland neither has foundation in the above-discussed norms of domestic law, nor in international law and practice.”

Finally, the Court suggests that the applicant may be able to lead a family life in Poland though application for a residence permit or exploring other ways of acquiring Polish citizenship:

“[Article 8 ECHR has also been invoked in the context of] the risk of the applicant’s expulsion from Poland, and disruption of her family life. A “comprehensive” review of the applicant’s legal status, as well as the legal status of her immediate family members which, taking into account the immigration regulations of Poland, may affect her right to stay, is beyond the scope of this judgment. This immigration status may be considered in separate proceedings. It should be noted that the fact that family members may have different citizenships does not in principle preclude their uninhibited enjoyment family life together in Poland, e.g. in the case of obtaining a residence permit, considering provisions regulating the rules of stay of foreigners in Poland. The fact that for many years the applicant lived in Poland under the false impression of having Polish citizenship, a confusion that was caused by a fault of a state authority, can be justifiably taken into account when deciding on her right to stay in Poland, in she decides to apply to the competent authorities with a relevant request related to residence. It should also be pointed out that the revocation of the [decision that originally confirmed nationality] does not limit the applicant's options to acquire Polish citizenship on grounds other than Art. 7 of the Act on Polish Citizenship, e.g. Art. 8 sec. 2, art. 16 sec. 1 of the same act.”



The Court rules against the applicant, and upholds the administrative decision that invalidated her Polish citizenship, presumably leaving her stateless. 

Caselaw cited

European Court of Human Rights, X. and Y. v. The Netherlands, judgment of 26 March 26, 1985.

European Court of Human Rights, Karassev v. Finland, decision of 12 January 1999.

International Court of Justice, Nottebohm, judgment of 6 April 1955.