The Polish Card Act: from draft bill to its amendment in 2019

The Polish Card Act was passed on 7 September 2007 and came into force on 29 March 2008. Although work on the bill began almost 10 years earlier, subsequent drafts were abandoned either due to a lack of consensus among parliamentarians, or because work had not finished by the end of the Sejm’s term (Polish parliament’s lower house). Ultimately, it was the approaching Third Congress of Polish Communities and Poles Abroad and the desire to present specific solutions, in particular to Poles from across the eastern border, that was one of the main reasons for the bill finally leaving its draft stage.

As a result, the final form of the Polish Card Act may be viewed as a certain compromise in terms of its extent and the rights granted to the Polish Card’s holders. Due to the costs of providing it, in the context of the expected high level of interest in obtaining it – later found to have been overestimated – the circle of persons entitled to apply was restricted to foreigners who were citizens of states that arose from the breakup of the Soviet Union. Officially, according to the justification for the bill, this was due to the fact that “most countries of the former Union of Soviet Socialist Republics do not allow dual citizenship”. The Polish Card was to serve as a certain substitute for it. Another argument for this restriction on recipients was the huge disproportion in the Polish diaspora’s standard of living in the East and other parts of the world. This was reflected in the preamble to the Act, which stated that its enactment constituted, among others, “the fulfilment of a moral duty towards Poles in the East who lost their Polish citizenship as a result of our Homeland’s changing fortunes”. In the initial period of the Act’s operation, it rested on the conviction that it was necessary to maintain what was called, “the Polish element” in the Eastern Borderlands, among others. The Polish Card was supposed to help manifest a feeling of belonging to the Polish Nation through the submission of a written declaration, among others. Over time and for various reasons – particularly among the younger generation – the Polish Card became desirable primarily because of the immigration entitlements and financial benefits it entailed. In time, the legislature began to perceive the Polish community in the East differently, seeing it primarily in terms of its demographic potential. This is demonstrated by such things as financial support for settling in Poland and a fast track to obtaining Polish citizenship.

All of the above arguments resulted in an extension of the Act’s application only in 2019, after more than 10 years since its enactment. Currently, anyone may apply for a Polish Card, regardless of their citizenship, provided that on the date of the application they do not hold Polish citizenship or a permanent residence permit for Poland. Significantly, stateless persons may also apply for a Polish Card.

Towards a binding act on Polish citizenship

The initiative to amend the Polish Citizenship Act arose at the same time as the draft Polish Card Act and, together with the Repatriation Act, all are referred to as the Three Acts Package. A new Act on Polish Citizenship was becoming ever more urgent because the hitherto Act was from 1962, and therefore grounded in radically different legal, social and economic circumstances. And just as the Polish Card Act was intended to support Polish communities living abroad, and the Repatriation Act was to help in returning to the homeland, so the new law on citizenship of 2 April 2009 was not only an adjustment to post-transformation realities, but, above all, was to create a means for restoring Polish citizenship to persons illegally deprived of it.

Restoration of Polish citizenship

The current Polish Citizenship Act contains provisions enabling Polish citizenship to be restored to persons who

• were deprived of it based, among others, on Article 11 of the Polish State Citizenship Act of 20 January 1920, say, as a consequence of acquiring another citizenship (such as American)
• lost their Polish citizenship based on Article 12 of the Act of 8 January 1951, namely, say, as a consequence of having illegally left the territory of the Polish State after 9 May 1945, according to the authorities at that time, or as a consequence of a refusal to return to Poland when summoned by the authorities
• were stripped of Polish citizenship, based, among others, on Article 15 of the Polish Citizenship Act of 15 February 1962 which was used to revoke Polish citizenship if, among others, the authorities decided that the person had breached the duty of loyalty to the People’s Republic of Poland or had acted to the detriment of its vital interests.

In other words, this is how a foreigner may obtain a Polish passport if that person has already held one. Incidentally, the prerequisites under which Polish citizenship was lost under the above Acts often caused a situation in which the person was unaware of having lost Polish citizenship. Only that person’s descendant would learn of this fact when applying for a Polish passport.

The minister responsible for internal affairs restores Polish citizenship in an official decision (Article 39 par. 1 of the Polish Citizenship Act). If the foreigner is resident abroad, the application is submitted via the Polish consul of the Republic of Poland appropriate for the place of residence (Article 42 par. 2 of the Polish Citizenship Act). Interestingly, if the documents attached to the application for the restoration of Polish citizenship raise doubts with the minister for internal affairs or the consul as to the foreigner’s possession of Polish citizenship, the official forwards the application to the governor of the province with a request for a confirmation of Polish citizenship (Article 44 par. 1 of the Polish Citizenship Act).

Confirmation of Polish citizenship

A confirmation of Polish citizenship under Article 55 et seq. of the Polish Citizenship Act constitutes a different legal claim. The essence of this procedure for obtaining a Polish passport relies on the principle that Polish citizenship is acquired by birth from a parent who is a Polish citizen. In other words, a person who has never held a Polish passport, but whose ancestors held Polish citizenship, may obtain a Polish passport. This is reflected in the documents attached to the application relating to the applicant’s forebears to the second degree and information about relevant circumstances necessary for establishing the factual and legal status.

Applicants for a Polish passport under the above legal basis are very diverse. They range from those who can easily provide documents of their forebears who left Poland, say under “Solidarity”, to people whose ancestors, say, emigrated to Canada after the Second World War or still in the interwar period, or even settled in the Brazilian area of Curitiba before the First World War. In such cases, the level of complexity usually depends on whether any documentation has survived. The filing of the application itself may be preceded by extensive researching of archives and analysing family histories.

There are two issues that are important when considering a confirmation of Polish citizenship. Firstly, in the context of the current Act, it is permissible to hold more than one citizenship while maintaining absolute priority for Polish citizenship. This is the principle of exclusivity of Polish citizenship, whereby a Polish citizen may simultaneously hold Polish citizenship and that of a foreign country, but that person still has the same rights and duties towards the Republic of Poland as a person holding just Polish citizenship: namely that person may not legally invoke against Polish authorities the simultaneously held foreign citizenship or rights and duties arising from it.

The second issue is a supplementary application of the principle of land (ius soli), known in the United States, among others. This is based on the acquisition of citizenship as a consequence of birth in the territory of a given state. This principle, as a derogation from the rule, is applied in Poland, for example, to children born in the Republic of Poland, whose parents are unknown or do not hold any citizenship.

Nevertheless, in the context of the problem at issue, a different application of the ius soli principle is relevant for the purposes of confirming possession of Polish citizenship. Its essence lies in the very important date of 11 November 1918 for Poles, namely the symbolic day on which the First World War ended and Poland regained its independence. The 1920 Polish State Citizenship Act referred to the law of the land, which was explained by the need to regulate the status of people who had emigrated earlier and those who, as a result of border changes, found themselves outside the borders of the Republic of Poland. So, as is the case, for example, in the United States, it was the place of birth that counted. In practice, if we know that our ancestor who emigrated, say to Brazil before 1918, was born within the borders of the Second Republic, we increase our chance of securing a Polish passport. The detailed further steps will depend on whether we are able to prove this based on documents in our home archive, or whether it will be necessary to commission a historian to establish the relevant findings, or to independently search the parish registers. It is also important to find out whether the ancestor lost Polish citizenship, and if so, for what reason. It is also worth remembering that it is important whether the applicant was born before or after the forebear lost citizenship (or, respectively, in a sequence of births, when the birth does not relate to the applicant, but, for example, to a parent).  

The Polish Card and confirmation of belonging to the Polish Nation

In a restoration or confirmation of Polish citizenship, the nationality of the applicant and their ancestors is irrelevant. This is important because, according to various estimates, the Second Republic of Poland (1918–1945) was inhabited by 31–34% citizens who were non-Polish nationals.

Things look a little different in the case of a Polish Card. According to the preamble to the Polish Card Act, the reason for its enactment was, among others, to meet the expectations of “those who have never been Polish citizens before, but due to their sense of national identity wish to obtain confirmation that they belong to the Polish Nation.”

Although initially the applicant was required to prove that at least one parent or grandparent or two great-grandparents was or were Polish nationals or held Polish citizenship, the 24 November 2017 Act amending the Repatriation Act, the Polish Card Act and the Act on Foreigners modified this provision, leaving only the option of invoking nationality. This has caused the possession of this document to be associated now with a sense of belonging to the nation.

The question remains, however, as to the meaning of this national belonging. On the one hand, it may be viewed in terms of ethnicity. This finds support in the documents that are attached to an application, because, for example, information about nationality was recorded in military service booklets or in post-Second World War and 1950s censuses in the Eastern Borderlands. On the other hand, parliamentary discussions during work on the Act repeatedly emphasised that nationality has, in this context, a cultural and not an ethnic dimension. In other words, it relates to such aspects as speaking Polish, and not necessarily to blood ties. The provisions of the Act are structured in such a way as to allow either interpretation.

In conclusion, to receive a Polish Card, it is necessary to submit (sign), most often in the presence of a consul of the Republic of Poland, a written declaration of belonging to the Polish Nation, and this fact can be and is interpreted in various ways, depending on the person concerned.

Confirmation issued by a Polish or a foreign Polish community organisation

The aspect of national affiliation means that as an alternative to presenting documents confirming forebears’ Polish nationality, an applicant may provide a certificate issued by a Polish organisation or Polish community organisation abroad confirming that person’s active involvement in activities benefitting the Polish language and culture, or the Polish national minority for at least the last three years.

This was originally intended to serve as a loophole if documents could not be produced due to having been destroyed or could not be re-created. Bearing in mind the turbulent fortunes of Poles over the last century, the loophole is not only fully justified, but sometimes actually indispensable to meeting one of the objectives of the Act, namely fulfilling the moral obligation to Poles who lost their Polish citizenship as a result of their homeland’s changing circumstances.

Right from the outset, though, the question arose whether this might lead to abuse and the Polish Card being issued to persons who have nothing to do with Polish nationality or citizenship. Nonetheless, it was decided to allow this eventuality, arguing that any possible abuse would be marginal compared to the benefits. Putting aside the discussion as to who was right, there have been many situations over the more than ten years of this law’s operation that have enabled the authorities to evolve their approach in order to prevent abuse. The organisations that are currently authorised to issue certificates are listed in the announcement of the Minister of Foreign Affairs of 3 January 2020 on the list of Polish or Polish community organisations authorised to issue certificates confirming active involvement in activities for the benefit of the Polish language and culture or for the benefit of the Polish national minority. A perusal of the annex, shows that a number of the listed organisations are associations or federations. Therefore, the issuance of a certificate in such case will involve, in fact, at least a two-stage process, because it will be usually based on a prior opinion issued by the authorities of one of the above organisations that belongs to the given union or federation, and of which the applicant is a member.

At the same time, this approach enables a person, who does not have any Polish origin but is actively involved in promoting Polish culture or is its enthusiast, to also obtain a Polish Card. Therefore, there is an exceptional case in which efforts to obtain Polish citizenship, and in particular the period required to acquire it, start while the person is still residing outside Poland, and has even never been to it.

The issuance of a Polish Card and the specific situation of a minor

In accordance with the Polish Card Act, the card may be issued to a minor upon a request of his/her parents, if (1.) both of them hold a Polish Card, or (2.) one of the parents holds a Polish Card, and the other consents to it being granted to the minor. If the minor is 16 years old, the minor’s own consent is also required. The Act also contains special provisions for such situations as when a minor’s parent held a Polish Card, but lost it in connection with obtaining a permanent residence permit. It is also worth noting that no other conditions need to be met in this case, such as, for example, demonstrating proficiency in the Polish language. As a rule, a Polish Card issued to a minor is valid for 10 years from its date of issue, however, not longer than until one year after the date on which the minor has become an adult. However, its validity may be extended if the holder submits an appropriate application for an extension at least 3 months before its expiry date.

Consequently, in essence, a minor who does not meet the requirement of Polish origin, but whose parents meet it, may be issued a Polish Card. This will be the case if, for example, only one of the minor’s great-grandmothers and also a grandmother of one of the parents, was a Polish national. As a result, the parent meets the condition, but the parent’s offspring does not. But the Polish Card brings important entitlements to its holder, such as study at a doctoral school, commencement and pursuit of studies and other forms of education, as well as participation in academic work, in principle, on the same terms as Polish citizens (it must be noted that studies in Poland are, as a rule, free of charge), and often more favourably, in view of the additional financial support offered to foreigners holding a Polish Card. A minor’s parents may then regard an application for a Polish Card as an investment in the child’s future and this may be the sole reason for seeking documents confirming Polish nationality or taking part in a Polish organization or a Polish community abroad.

Selected entitlements associated with a Polish Card with particular emphasis on financial benefits to foreigners settling in Poland

A person holding a Polish Card may enjoy a number of associated rights. First of all, the holder is exempt from the obligation to hold a work permit and may start up and do business on the same terms as Polish citizens. This is of considerable importance because it means unlimited access to the Polish labour market – the same, in principle, as for an employee with a Polish passport. In practice, this makes the person an attractive employee and contractor, who may start work almost immediately, which is rarely the case with foreigners.

The entitlements also include education, as mentioned above. But as a side note and clarification, education at lower levels is provided under general rules, due to compulsory statutory schooling that also applies to foreign minors and is based on the Education Law Act of 14 December 2016. Moreover, as already mentioned, a Polish Card give its holder the right to apply for scholarships and other assistance intended for foreigners.

Moreover, a foreigner who holds a Polish Card, which in itself is not a document that may be used to cross the border, is exempt from consular fees for submitting and processing an application for a Polish visa in order to exercise the rights arising from possessing the card. Moreover, under the Act on Foreigners, the foreigner is also exempt from having to demonstrate having means of subsistence or an ability to secure such means, which is associated with enjoying the above-mentioned open access to the labour market and the ability to take up immediate employment.

Such person also enjoys entitlements that are not available to an ordinary person in the street, such as a discount on rail travel or free admission to state museums.

Finally, when applying for a permanent residence permit, such person may submit an additional application for a grant to partly cover the costs of arranging a home and for current living expenses in Poland. The benefit is for 9 months, in varying amounts for the first 3 and the further 6 months, and is linked to the level of the minimum wage.

Routes to citizenship: Polish Card v. confirmation of Polish citizenship

If seeking confirmation of Polish citizenship, the application must be submitted directly to the province governor appropriate for the person’s current or last place of residence in Poland. If the place of residence is outside Poland, the application may be submitted through the consul with responsibility for the applicant’s place of residence. The level of the fee depends on where the application is submitted. The application should be accompanied by documents required for establishing the factual and legal status, therefore usually those that confirm the applicant’s forebears’ Polish citizenship. The applicant is not required to have any proficiency in Polish in this case.

Whoever decides to apply for a Polish Card faces a somewhat longer path to holding a Polish passport. The authority responsible for granting a Polish Card is, as a rule, the consul with jurisdiction for the applicant’s place of residence. The procedure itself is free of charge. After receiving a Polish Card, a foreigner who is interested in moving to Poland may apply for a one-year national visa, and may then apply, upon arrival, for a permanent residence permit. After receiving the residence card in a decision granting a permanent residence permit in Poland, the foreigner is required to surrender the Polish Card.

A foreigner who has resided continuously on the territory of Poland for at least one year based on a permanent residence permit obtained in connection with a Polish Card, is deemed a Polish citizen. Obviously, a requirement is the submission of an application for recognition as a Polish citizen to the province governor with jurisdiction for the applicant’s place of residence. The period of uninterrupted stay is assessed in accordance with Article 195 par. 4 of the Act on Foreigners and, in brief, a stay is deemed uninterrupted if no break exceeded 6 months and all the breaks did not exceed a total of 10 months. Moreover, the decision on recognition as a Polish citizen is constitutive, which in this case means that the uninterrupted stay criterion must be met on the date when the decision is issued and not when the application was submitted. The provisions include a number of exceptions where even a stay abroad will not exhaust the pool available and the stay will still be deemed uninterrupted. It is worth noting, though, that in some cases this has the effect that the actual, required stay in the territory of Poland is reduced to 2 months during one year.

Instead of a summary: when to apply for a Polish Card, and when for confirmation of Polish citizenship

This question requires each case to be analysed in two stages: the first focusing on the possibility of meeting the requirements, and the second relating to the purpose of applying for the chosen document. In other words, applicants must answer the question whether they qualify and why they are applying.

A confirmation of Polish citizenship requires the provision of documents relating to the applicant’s forebears who held such citizenship. If such documents are available, the procedure is not particularly difficult. Obstacles begin to appear if, for example, it becomes necessary to conduct prior research in archives in Poland, Belarus or Ukraine. Additional difficulties may arise in explaining, for example, the reasons for a change of surname. In order to confirm Polish citizenship, there is no requirement to have any Polish language proficiency or to have Polish nationality. With persons who are residing abroad, it is worth remembering that the consul’s role here is actually that of an intermediary, and the decision is issued by the appropriate province governor. On the other hand, this is also a process that, to a large extent, may be outsourced to a law firm that will conduct the matter for the client and will usually even work with an archivist and a historian and also a sworn translator, if the need should arise. And of course, the more complicated the case, the higher the costs.

The outcome is the receipt of a decision confirming the applicant’s possession of Polish citizenship. Following a transcription of civil records, namely the transfer – upon a request and in a separate procedure – of the details of a foreign civil record (e.g. birth certificate) to the Polish civil register, the procedure enables a subsequent application for a Polish identity card and passport. Naturally, civil records may be transcribed earlier, even before obtaining a decision on citizenship. Consequently, the newly-minted Polish citizen may enjoy the same rights to which a person holding a passport with a crowned eagle is entitled, including the possibility of taking up employment or running a business in other EU Member States or entering a long list of countries without the need to obtain a visa.

If a person is interested in obtaining a Polish Card, the first thing to consider is gathering  documents confirming the Polish nationality of one’s ancestors. Incidentally, it is worth noting that consuls are usually well acquainted with the regional social, political and historical background, which means that they are able to read the submitted documents and understand their context, often providing an interpretation that is the most beneficial for the applicant. A further element will be preparation for an interview with the consul on cultivating Polish traditions and customs. Although the interview is in Polish, it is not intended to test the applicant, although this is how most people treat it, but to check whether the person maintains a connection with Polish culture. The questions concern, for example, national holidays, and the dishes served during them ­– whether any have survived in the family’s tradition. The questions also cover Polish national symbols or the history of the Polish community in the place of residence. A requirement is a demonstration of knowledge of the Polish language, but this is to confirm that some effort has been spent on obtaining the document and its importance for the applicant. Two arguments may be cited to illustrate this. Firstly, during work on the bill, the required level of proficiency in Polish was set at A2, which was eventually abandoned in order to avoid any comparisons with a test. It is also worth remembering that nothing stands in the way of having more than one conversation with the consul.

A Polish Card provides a number of entitlements, which are of primary importance to a person who wishes to have a symbolic confirmation of belonging to the Polish Nation or to emigrate to Poland. An additional argument may turn out to be the financial aspect: priority in access to state or local government funds allocated for supporting Poles abroad, as well as additional scholarships and a settlement allowance in the event of taking up studies in Poland or a desire to settle. With the exception of certain benefits associated with obtaining a Polish visa, this document will not be all that helpful for someone planning to travel to another EU Member State. Also the later, possible procedures for obtaining a permanent residence permit or being recognized as a Polish citizen, are also actually mere formalities, and the number of documents is restricted to a copy of the Polish Card and then the decision granting the permanent residence permit in the territory of Poland.

As a result, sometimes it is the documents which are available that will determine which type of document is being applied for. It may be that it will be possible to confirm the Polish citizenship of forebears, but not their Polish nationality. The opposite may also happen, say, due to the fact that the ancestors lived in territories which no longer lay within the borders of the Second Republic of Poland. In this case, it may be impossible to decide whether to apply for a Polish Card or a confirmation of Polish citizenship. It may also be that the goal is to be able to work in an EU Member State, other than Poland. In such case it will be important to obtain a Polish passport as soon as possible, and the obvious choice will be to apply for confirmation of Polish citizenship. It may also happen that filing an application for confirmation of Polish citizenship will be both a barrier and the only way forward. It may also turn out that although both paths are available, the most pressing goal is the ability to undertake free medical studies in Poland. In such a situation, applying for a Polish Card will be a much more rational solution. And finally, it may be that one’s forebears had neither Polish citizenship nor Polish nationality, but one is wondering how to secure one’s children’s future and moving to Poland seems a good and available solution. The Polish Card is also for those who particularly cherish Polish culture and language.

Karolina Misiewicz, Magdalena Świtajska