In Poland, citizenship is a legal institution regulated by administrative law, and the latter, from the most general perspective, belongs to the public law branch, unlike, for instance, civil or commercial law, which constitutes private law. The distinction between public and private law can of course be made from many perspectives, but for our purposes, the most useful is the one that points to the nature of relations created by public law, on the one hand, and by private law, on the other. Public law, as it concerns the mutual relations between the organs of the state and between the organs of the state and the individual, is characterized by the inequality of the subjects involved in the legal relations created based on its provisions. The latter is characterized by an absolute obligation to apply them, as opposed to private law provisions, which are applicable only when the parties to an equivalent legal relationship have not agreed otherwise. Private law presupposes an equal relationship between its subjects, individuals, and the interference of the state authorities is limited only to contentious situations.
The application of provisions of administrative law, including those regulating Polish citizenship, therefore falls within the competence of the public administration bodies. In practice, this means that an individual cannot simply exercise the rights provided for in administrative law provisions or perform the obligations arising therefrom merely because he or she has become acquainted with a provision of that law and has found that he or she meets all the criteria for its application. The norms of administrative law must first be transformed by the public administration body into individual and concrete norms, which take the form of an administrative decision. To use the closest example to us: even if the interested party himself had been familiar with all the laws on Polish citizenship since 1920, and had analyzed all the prerequisites from the point of view of the events resulting in the acquisition of Polish citizenship and the lack of events causing its loss, after that analysis he came to the conclusion: yes, I am a Pole, my ancestor held Polish citizenship and like other persons in the line of inheritance of citizenship he had never lost it – as a result of that statement he could not start using the rights resulting from Polish citizenship.
The process of administrative substantive law application, i.e. transformation of general norms into individual norms by the public administration bodies, was included in the framework of administrative procedural law, regulated in the Code of Administrative Procedure from 1960. Incidentally, it may be mentioned that the legal regulation of administrative procedure in Poland has almost as long a history as the regulation of the issue of Polish citizenship since the first legal act comprehensively discussing this issue dates back to 1928. The administrative procedure aims to guarantee to its participants such a standard of law application that reflects all features of a legal state and guarantees equality before the law. The Code of Administrative Procedure guides through all stages of these proceedings, setting out the legal basis for the actions of the body conducting the proceedings and thus guaranteeing to the applicant that everything that happens in the course of the proceedings is not within the sphere of the administration’s discretion. It is here where we find: regulations concerning deadlines within which the proceedings should be completed and, at the same time, legal instruments which make it possible to intervene in case of violation of these deadlines, regulations ensuring active participation of an applicant in the proceedings, the possibility to act through an attorney, the way of delivering letters during the proceedings, defining what can constitute evidence in a case, and, finally, regulations ensuring the right to appeal against a negative decision and the right to challenge final decisions (i.e. decisions with respect to which the deadline for filing an appeal has expired) in one of the extraordinary procedures.
So what does the Polish citizenship confirmation procedure look like in the light of the above-mentioned regulations?
Polish citizenship confirmation proceedings are usually initiated upon request of the interested person, who can be represented by an attorney in the proceedings. The attorney must be a natural person with full legal capacity; no other requirements are stipulated. There is no requirement that the attorney should be a lawyer, but a law expert and administrative proceedings is certainly the best choice.
The proceedings concerning Polish citizenship confirmation are particularly complicated, so in accordance with the provisions of the Code, the deadline for their completion is 2 months from the date of their initiation. However, it is important to note that in accordance with the provisions of the law, the deadline does not include, inter alia, deadlines provided for by law for carrying out specific actions. In practice, it means that the two-month deadline does not include, for example, the waiting time for a reply from the consulate, which is necessary to exclude circumstances resulting in the loss of Polish citizenship. Ultimately this means that the proceedings last at least 3 months.
The stage of proof in the Polish citizenship confirmation process
One of the most interesting issues in Polish citizenship confirmation proceedings is the stage of proof. The provisions of the administrative procedure provide for the principle that it is the authority conducting the proceedings that are obliged to gather evidence in the case. However, the Polish Citizenship Act of 2009 substantially modifies this principle, shifting the entire burden of proof onto the applicant. The provisions of the Act state that the applicant has to attach to the application documents confirming the data and information contained therein. In a nutshell, this means that all the evidence supporting the circumstances set out in the application in such cases should be collected by the applicant himself even before the application is filed, and attached to the application in a complete form (if he claims that his grandfather was born in 1927 in Polish town X and lived there until the outbreak of war – he should attach documents supporting these claims to the application).
The decision on Polish citizenship and appeal options
The confirmation of Polish citizenship proceeding ends with the issuance of a decision, usually substantive, of two types: confirming that the applicant has Polish citizenship or refusing to confirm that the applicant has Polish citizenship.
The applicant may appeal against each decision to a higher instance authority, however, it has to be remembered that the appeal has to be lodged within a non-extendible deadline of 14 days from the date of delivery of the decision. Interestingly, the Code contains such detailed regulations as the one that the deadline is deemed met if before its expiry the letter has been posted in a Polish postal facility or submitted in a Polish consulate.
The appellate authority reconsiders the case without being bound by the content of the appeal. It may ask for additional documents or explanations or conduct the evidence proceedings on its own. The deadline for settling the case in the appeal proceedings is one month, and the decision of the appeal authority is final.
It is only at this stage that the court steps in – in Poland this is the administrative judiciary, also in two instances, with the Supreme Administrative Court as the “final oracle”. It is worth mentioning that it is only at the stage of proceedings before the Supreme Administrative Court that the law regulates the so-called lawyer’s compulsion.
A decision, upon expiration of the time limit for appeal, becomes final and is covered by the principle of the durability of final decisions, which is essentially motivated by the need to protect the rights acquired from the decision, which is one of the guarantees of the rule of law. The attribute of the finality of a decision means that it may be challenged only in circumstances strictly provided for by law in the so-called extraordinary procedures.
What can you do if you received a negative decision in the past?
What does it mean for a person who applied in the past for confirmation of Polish citizenship and received a negative decision and did not manage to appeal against it? It is worth consulting your situation with a specialist! In certain circumstances, it is possible to restart the administrative procedure and obtain a different outcome for your case. Although the provisions themselves concerning Polish citizenship have not changed, and it is impossible to change a law that formally is no longer in force, the interpretation of these provisions, including those shaped in the rulings of administrative courts, changes.
