Poland

Although Poland is party to some relevant human rights instruments, it has not acceded to any of the core statelessness conventions. Its data on stateless populations in the country is unreliable, and there is no dedicated statelessness determination procedure. Some stateless people may regularise their stay through alternative administrative procedures, for example, during return or removal proceedings, but there are significant protection gaps. Stateless people can be detained solely to confirm their identity, and their protection needs are not considered during detention procedures.

There is a safeguard in Polish nationality law to prevent statelessness in the case of adopted children and foundlings, and the law provides for the acquisition of nationality by a child born to unknown or stateless parents on the territory. However, it does not prevent statelessness in the case of children whose foreign parents cannot confer their nationality, and there are practical obstacles to acquiring Polish nationality for children born abroad to same sex parents, which are discriminatory and may result in statelessness. Legal residence of the parents is not required for birth registration, and although Poland has received Universal Periodic Review recommendations on access to birth registration, there are no current reports of barriers to birth registration.

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Katarzyna Przybyslawska, Halina Niec Legal Aid Center

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Poland has not acceded to any of the four core statelessness conventions, though it has signed the European Convention on Nationality. It is party to all the other relevant regional and international human rights instruments, but does retain some reservations and declarations, for example in relation to its interpretation of the Convention on the Rights of the Child. As a European Union member state, it is bound by the EU Returns Directive.

  • Poland is not state party to the 1954 Convention.
  • Poland is not state party to the 1961 Convention.
  • Poland has signed but not acceded to the European Convention on Nationality. It did not enter any reservations at the time of signature. It is not state party to the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • Poland is party to the European Convention on Human Rights with no reservations.
  • Poland is bound by the EU Returns Directive.
  • Poland is party to all other relevant international treaties. It has no reservations to the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all Forms of Discrimination Against Women nor the Convention on the Elimination of All Forms of Racial Discrimination. It entered two declarations to the Convention on the Rights of the Child relating to its interpretation of certain articles in line with 'Polish customs and traditions' and 'principles of morality'; and it has reservations to the Convention against Torture relating to confidential inquiries and arbitration.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

The Polish Government publishes disaggregated data on the number of ‘stateless’ people in the Polish census, but other overlapping terms, such as ‘undetermined nationality’ are also used, making figures unreliable. As there is no legal definition of a stateless person in Poland, the authorities use and interpret the term inconsistently and different government departments use different overlapping terms and definitions. There is no published data on stateless people in detention, though some figures are collected by the Polish Border Guard. A mapping study on statelessness in the country is forthcoming.

  • The terms 'stateless' and 'undetermined nationality' were included in the last (2011) census: 2,020 people self-identified as ‘stateless’, and in 8,805 cases no nationality was established (most were homeless and undocumented). Census data is disaggregated by gender and place of birth (Poland or abroad).
  • The Polish authorities use and interpret the term 'stateless' inconsistently and do not apply a uniform definition. The Border Guard applies a multitude of partially overlapping terms and there are no estimates for undocumented stateless people, so the numbers are likely an underestimate.
  • Different government departments use different terms, including 'without nationality' and 'undefined nationality', as well as ‘stateless person’, defined as 'a foreigner of no state affiliation, stripped of citizenship or claiming to be a citizen of an unrecognised state'. People with ‘unknown nationality’ are those not defined as stateless, who do not claim to be a citizen of any state, who claim potential affiliation with many states, or who are not recognised by a state of which they claim citizenship. People whose ‘citizenship was not confirmed’, are those with no identity documents whose personal details (including citizenship) are accepted based on oral statements, and subsequently verified.
  • UNHCR estimates for the stateless population in Poland are based on data from the 2011 census. A mapping study of statelessness in Poland was commissioned by UNHCR in 2017 and is forthcoming. NGO, Halina Niec Legal Aid Center, published a study on statelessness in Poland in 2013.
  • According to the Ministry of Digital Affairs there are 1,328 stateless people registered in the PESEL register (Polish Civil Registry). According to the ‘Office for Foreigners’, there were 510 ‘stateless’ and pople of ‘unknown nationality’ with valid residence permits at the end of June 2016 (467 stateless and 43 unknown nationality; 151 (30%) of whom were from Former Soviet Republics; 90 (18%) of unknown origin; and 60 (12%) of Polish origin. In June 2017, 432 stateless people and 44 people with undefined citizenship held valid residence permits.
  • The Office for Foreigners also publishes statistics on applications for international protection and legalisation procedures, and decisions issued.
  • Separate data sources record the number of stateless asylum seekers, recognised refugees and people with other types of residence. In June 2017, there were 52 recognised refugees who were stateless. In 2016 there were 19 applications for international protection in Poland made by stateless people.
  • Data on stateless people in detention is not publicly available. In response to a freedom of information request, the Polish Border Guard provided figures indicating that several stateless people or people with underdetermined nationality were detained (nine people in 2015 and six people in the first half of 2016).

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

Poland does not have a dedicated statelessness determination procedure (SDP), but statelessness may be identified through other administrative procedures, so it falls within Group 2. There is no legal definition of a stateless person and no procedure is tailored to identifying statelessness, but it can be raised as legally relevant during asylum, return or removal procedures, for example. Authorities are not obliged to consider a claim to be recognised as stateless and there is no guidance for the assessment. Procedural protections in international protection and other administrative procedures vary, including legal aid for appeals or judicial review, interviews in some cases, interpreters and decisions in writing. There is no ‘stateless’ status but rather the possibility to receive a permit for tolerated stay with a right to work, healthcare and social assistance. 

  • There is no dedicated statelessness determination procedure (SDP) in Poland, but there are alternative administrative procedures through which statelessness can be identified.
  • There is no stateless status nor legal definition of a 'stateless person', and although statelessness may arise as a legally relevant fact in different proceedings, none are tailored to make a determination. Relevant procedures include the procedure for granting international protection and return proceedings as they typically include a component of identification, citizenship assessment and determining country of origin and/or return. Legalisation proceedings may be of relevance, but have limited scope. For undocumented stateless people, amnesty proceedings are relevant, but these are not regularly accessible.
  • The procedure for granting protection is centralised (Office for Foreigners). Legalisation and return proceedings are conducted locally by the Voivode’s Office (local administration) and the Commander in Chief of the relevant division of the Border Guard respectively.
  • Statelessness may arise as a legally relevant fact in different proceedings, but none are tailored to make a determination, nor state this as an explicit objective. Relevant procedures include international protection, return proceedings, legalisation proceedings and amnesty proceedings.
  • The identification of statelessness is part of the more general identification process and the assessment of nationality. There are no legally set criteria, but rather technical steps taken by the authorities to ensure that the administrative proceedings may continue.
  • There are no obligations in law for the authorities to consider a claim for stateless status, and no clear instructions on how to make a claim.
  • There is no standard training for officials on statelessness, though some ad hoc training may take place.
  • The authorities responsible for carrying out administrative procedures (protection or return proceedings) cooperate with the Border Guard for the identification of the person and their nationality.
  • There is no definition of a stateless person in Polish law.
  • There is no ‘stateless status’ in Polish law, but in the process of identification - including the assessment of nationality - the burden of proof is shared between the individual and the authorities and the standard of proof is the same as in asylum applications.
  • There are no guidelines prescribed by law for decision makers. The process of identification - including the assessment of nationality - is carried out by the Border Guard relying on their internal verification procedures.
  • Free state legal aid is provided at the appeal stage of international protection procedures and at judicial review for administrative proceedings. There is no free legal aid for return proceedings.
  • Interviews are mandatory for the international protection procedure (except in manifestly unfounded applications). There is no obligation to interview the person in return proceedings.
  • Interpreters are provided free of charge in international protection and return proceedings whenever necessary.
  • Decisions are given in writing and with reasons in line with general rules for administrative procedures.
  • A person identified as stateless during return proceedings is issued with a permit for tolerated stay, provided that the country of former habitual residence will not accept them. Tolerated stay legalises their stay in Poland but does not entitle them to a travel document.
  • Those with tolerated stay are entitled to work without obtaining an additional work permit, and they have access to healthcare and social security, but they must report to the Commander in Chief of the relevant Border Guard Division and notify them of any change to their place of residence.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

Powers to detain in Poland are far-reaching and there are few protections against arbitrary detention of stateless people. For example, there is no requirement for a country of removal to be set prior to detention. The identification of statelessness during removal procedures may make removal unenforceable and lead to a permit for tolerated stay, but there is no provision establishing statelessness as a juridically relevant fact nor detention as a last resort (though alternatives are prescribed in law). There are some procedural safeguards and remedies for detainees, but there are obstacles to accessing legal aid. A permit for tolerated stay may be granted on release with access to some basic rights including to work, education and healthcare.

  • Powers to detain are provided for in the Act on Foreigners and the Code of Criminal Procedure. An application to detain or prolong detention is issued by the Border Guard, but detention can only be authorised by written court decision.
  • Detention can be ordered if: 1) it is probable that a return decision without possibility of voluntary departure will be issued; 2) a return decision without possibility of voluntary departure has been issued; 3) the foreigner has not left Poland within the voluntary departure period and immediate removal is not possible; 4) it is necessary to ensure transfer to another country under the Dublin Regulation and there is a severe risk of absconding and an immediate transfer is not feasible; or 5) the foreigner does not comply with the duties imposed on him by the decision ordering alternatives to detention.
  • If an application for international protection has been lodged, detention is permissible: 1) to establish the person's identity; 2) to determine the reasons on which the application for international protection is based and which could not be obtained in the absence of detention, in particular when there is a risk of absconding; 3) if a person is in pre-removal detention in accordance with the EU Returns Directive and had the opportunity to apply for protection before and it can be substantiated that the application for international protection is submitted merely to delay or frustrate enforcement of the return order; 4) for reasons of state security or public order; or 5) according to the Dublin Regulation, where there is a serious risk of absconding and an immediate transfer is not possible.
  • These grounds for detention are far-reaching and could be interpreted as going beyond the purposes allowed under ECHR 5(1)(f).
  • A final assessment of the country of removal is not a precondition for ordering detention.
  • Nothing in law provides protection for a person identified as stateless during a detention procedure and there is no SDP to refer into, but identification may render a removal decision unenforceable and lead to granting a permit for tolerated stay (and release).
  • NGOs providing legal assistance in detention centres have identified stateless people and people at risk of statelessness.
  • When deciding on a detention order, the court must consider non-custodial measures, but no provision establishes that detention is a last resort.
  • Statelessness is not defined as a vulnerability factor. Although there are specific grounds prohibiting detention in certain cases (unaccompanied minor asylum seekers, unaccompanied minors under 15 years-old, those presumed to have been subjected to violence, if detention would pose a threat to life or health, disabled asylum seekers), there is no legal procedure for carrying out assessments before taking a decision on detention. In practice a basic vulnerability screening is carried out on arrival at the detention centre.
  • There are no measures to protect stateless people who have been convicted of a criminal offence from arbitrary detention.
  • Several alternatives to detention are prescribed in law including regular reporting to the Border Guard, bail, relinquishing travel documents, and residing in a designated place.
  • In a 2014–2015 study, the Rule of Law Institute Foundation found that in 939 analysed cases, the courts ordered detention 869 times (92.5% of cases). In most cases, it was not clear how alternatives had been considered. Often no reference to alternatives was made in the justification of the detention order. However, since alternative measures were introduced, the number of people placed in detention has dropped.
  • The Law on Foreigners specifies a maximum time limit of 18 months. The initial detention period for an asylum applicant is 60 days (if the application is lodged from detention and there are valid reasons to maintain detention, it can be extended by 90 days). If asylum proceedings have not been concluded during this period and the grounds justifying detention still exist, detention can be extended up to six months.
  • Decisions ordering detention are given in writing with reasons.
  • All detainees are provided with written information in a language they understand on their rights, obligations, contact details of NGOs providing assistance, and UNHCR.
  • Detention can only be ordered and extended by a decision of the court, at the request of the Border Guard, which constitutes a de facto periodic review of detention. If removal is deemed unenforceable, a permit for tolerated stay is granted and the person released, but there are no set deadlines in law or practice for what constitutes a ‘reasonable time’.
  • Perople detained have the right to appeal the detention order and extension to the court within seven days and the court has seven days to examine the request. In practice the courts take around three weeks to decide the appeal. A detainee can also file an application for release to the Border Guard if they believe there is a high probability they will be granted protection. If refused, this decision can be appealed.
  • The law specifies that if a return order is issued for someone without documentation, the Border Guard should file a motion for redocumentation to the relevant authorities of the country of origin.  If redocumentation is impossible, the Commander in Chief of the Border Guard may issue a Temporary Polish Travel Document valid for seven days to enable the person to cross the border. The law does not specify the process for assessment of nationality and redocumentation and no deadlines are set. 
  • Currently due to a shortage of funds, no Polish NGOs provide free legal aid to detainees unless they are in the international protection procedure. They can be granted state legal aid in detention proceedings but in practice, this is almost never accessed by foreign detainees.
  • If removal is unenforceable, a permit for tolerated stay is issued, which is considered legal stay.
  • There is no practice of officially confirming the fact of statelessness, unless the fact of lack of nationality is part of the written justification of a decision.
  • Tolerated stay status grants access to social assistance, education, healthcare, and the right to work.
  • Cumulative time spent in detention is counted towards the maximum time limit only if the grounds for reissuing a detention order are the same as before under the same proceedings.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

Efforts to prevent and reduce statelessness in Poland are mixed. There are partial safeguards in law to prevent statelessness, for example, in the case of foundlings and adopted children. Access to birth registration is facilitated, for example, there is a provision for births to be registered ex officio if parents do not register the birth within the legal deadline. However, the safeguard in nationality law to prevent statelessness in the case of children born in Poland applies only to children born to stateless or unknown parents. In the case of children born abroad to same sex parents there is also a risk of statelessness due to discriminatory practice by the Polish authorities that may prevent the child acquiring a Polish passport or documentation in practice.

  • Poland does not have a full safeguard to prevent childhood statelessness. The law provides for certain categories of children born on the territory to unknown or stateless parents to acquire Polish nationality, but there is no safeguard on the basis of the child's statelessness.
  • A foundling or child born to stateless parents, or parents whose nationality is undetermined, is granted Polish nationality automatically, but there is no other safeguard for a child who would otherwise be stateless (for example if parents could not confer their nationality).
  • Children who fall within the scope of the safeguard are not required to prove they cannot access another nationality, nor are they or their parents required to fulfil a period of legal residence.
  • There are no specific provisions in place for the children of beneficiaries of international protection born in Poland.
  • Foundlings are granted Polish citizenship automatically by law.
  • There is no age limit set in law for the granting of citizenship to foundlings, though the legislation refers to ‘new-born’ status.
  • There is no legal possibility for a foundling's citizenship to be lost as Polish nationality is granted ex-officio so there is no decision that could be later revoked.
  • Foreign adoption does not interfere with the Polish nationality of a minor child. If the foreign parents want to confer their nationality to an adopted Polish child and the nationality law of their country of citizenship does not allow for dual nationality, they may submit an application to the President of Poland asking for consent for renunciation of Polish nationality.
  • A minor adopted by a Polish national is deemed to have acquired Polish citizenship by birth when adopted and the full adoption takes effect before the child reaches 16 years-old.
  • All children with at least one Polish parent are Polish nationals by law irrespective of the place of birth.
  • In practice, problems may arise resulting in statelessness: although Polish nationality is acquired automatically at birth, in practice, registration in Poland (or transcription of the birth certificate) is sometimes required to be issued with a passport or Polish ID at the Polish embassy. Recent cases of children of same-sex parents abroad have raised problems as Poland does not recognise same-sex partnerships and will not issue a transcription of a birth certificate naming both parents in such cases.
  • The law stipulates that all births must be registered within 21 days of the medical record being issued by the hospital. This is then transferred to the local Civil Registry Records Office.
  • The parents are not required to be legally resident to complete the birth registration process.
  • There are no current reports of barriers to birth registration in practice and no mandatory requirements on the authorities to report undocumented persons, although Poland has received UPR recommendations in relation to access to birth registration in the past.
  • If a birth is not registered before the prescribed deadline, the Head of the Civil Registry Records Office records the birth ex officio.
  • There are no legal obstacles to late registration and no reports of barriers in practice.
  • There are no government campaigns to promote birth registration and no current reports of high risk groups where children are at risk of not having their birth registered.

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