Laut 2025-09-03 No Comments

Who are stateless persons in Poland? A legal vacuum

Legal analysis of the status and protection of stateless persons in the Republic of Poland: legislative challenges and practical consequences

An analysis of the situation of stateless persons in Poland points to fundamental challenges, resulting primarily from the lack of a coherent, dedicated legal definition and a procedure for determining this status. Despite the presence of the 1954 Convention, Polish legislation has not directly introduced its provisions, which leads to reliance on fragmented and substitute legal mechanisms. In consequence, the legalization of stay and access to rights take place on the basis of regulations governing the stay of foreigners, such as consent for tolerated stay or for humanitarian reasons. This approach results in an incomplete and precarious legal status, which significantly differs from the protection granted to refugees. The report identifies serious inconsistencies in statistical data, limitations on access to basic rights, and the fragmentation of regulations, which is a direct consequence of the lack of a holistic legislative approach.

1. Introduction to the issue of statelessness

1.1. Definition of a stateless person in international and national law

In international terms, the definition of a stateless person is strictly defined. According to the 1954 Convention, a stateless person is “a person who is not considered as a national by any State under the operation of its law.”¹ This definition, known as de jure statelessness, focuses exclusively on the formal lack of citizenship.² Poland, despite being a party to many human rights instruments, has still not ratified two key conventions on statelessness: the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.³ This fundamental legal gap in the Polish legislative system has far-reaching consequences.

As a result of this lack of ratification, Polish national law does not contain a formal, legal definition of a stateless person.³ Instead, various state administration bodies, including the Office for Foreigners and the Border Guard, use terminology and interpretations in an inconsistent manner.⁴ This leads to a situation where, for example, persons with “undetermined identity,” including homeless persons, are considered stateless persons.³ This terminological and legislative inconsistency poses a serious challenge for a uniform public policy and the coherence of the legal system.

1.2. Statistics and population data: the problem of reliability

The problem of a lack of a legal definition and a dedicated procedure is reflected in statistical data regarding the population of stateless persons in Poland, which are characterized by striking unreliability and inconsistency. Available data from various sources show significant discrepancies, which makes a reliable assessment of the scale of the phenomenon difficult. For example, the 2011 National Census recorded 2,020 stateless persons and over 8,000 persons with “undetermined citizenship.”⁶ Meanwhile, newer data from the census in November 2023 indicate significantly lower numbers, respectively 66 persons who declared themselves stateless, and 341 persons with undetermined citizenship, respectively.⁵

This inconsistency is not merely a technical problem, but is a direct consequence of the lack of a uniform legal definition of a stateless person. In consequence, various government institutions, such as the Central Statistical Office, the Office for Foreigners, and the Border Guard, apply their own, often divergent, classification criteria. This leads to an overlap of terms, where homeless persons or persons without documents are often classified as persons with “undetermined citizenship.”³ This situation makes it impossible to create a precise demographic picture of the population of stateless persons and to plan adequate legislative solutions. This phenomenon, as the report indicates, causes the problem of statelessness in Poland to be “mostly ignored” due to the lack of reliable and comprehensive statistical information.⁶ It is a fundamental obstacle to a systemic approach to the problem and testifies to a deep gap in state registers.

2. Legal framework governing the status of stateless persons in Poland

2.1. Lack of a dedicated statelessness determination procedure (SDP)

The Polish legal system does not provide for a dedicated administrative procedure aimed at formally determining the status of statelessness, which is one of the key shortcomings in Polish legislation. The law does not impose on the authorities the obligation to consider applications for stateless status, nor does it establish clear rules for such a procedure.⁴ As a result, the identification of statelessness is not an end in itself, but an auxiliary process that takes place within the framework of other proceedings, most often during procedures related to expulsion or granting protection. For this purpose, the authorities, including the Border Guard, examine all available evidence, documents, and regulations concerning citizenship in the person’s declared country of origin.¹

This fragmented process means that persons without citizenship are not treated as a separate category of legal subjects, which significantly lowers their position in the legal system and makes it difficult for them to formalize their status. The lack of a coherent procedure results in a lack of consistency in administrative practice and leaves stateless persons in a “legal vacuum,” where their existence is highly dependent on the circumstances of individual proceedings.

2.2. Laws regulating the right of residence: The Act on Foreigners

The main legal act that in practice regulates the situation of stateless persons is the Act of 12 December 2013 on Foreigners.⁸ This act specifies the principles and conditions of entry, transit, stay, and departure of foreigners from the territory of Poland.⁸ In the absence of a dedicated stateless status, the legalization of stay for these persons takes place using substitute mechanisms, such as consent for a tolerated stay or consent for a stay for humanitarian reasons.⁴

Consent for a tolerated stay is granted to a foreigner when their expulsion could only take place to a country in which their right to life, freedom, and personal security would be threatened.¹ This consent is also granted when the execution of the decision to oblige them to return is impossible due to formal or technical reasons.⁴ The document “consent for a tolerated stay” is valid for a period of 2 years, confirms identity, but not citizenship, and does not entitle the holder to cross the border of the Republic of Poland.¹²

Consent for a stay for humanitarian reasons is regulated in articles 348-350 of the Act on Foreigners and is granted in a situation where the obligation to return could expose the foreigner to the risk of suffering serious harm, including torture, inhuman or degrading treatment.¹⁰ This status, in contrast to a tolerated stay, entitles the holder to move and stay on the territory of other Schengen area countries for a total period of 90 days in any 180-day period.¹⁰

This fragmented legal approach means that stateless persons are de facto forced to use procedures that are not dedicated to their situation. Consent for a tolerated stay and consent for a humanitarian stay are mechanisms intended to solve the problem of the impossibility of expelling a foreigner, and not to grant them a stable legal status. This situation leads to a legal, but precarious existence, in which the legal status is de facto a prosthesis, and not a stable solution to the problem of statelessness.

3. Rights and obligations of stateless persons in practice

3.1. Access to documents and travel restrictions

In practice, the key document for a stateless person staying in Poland is the “Polish foreigner’s identity document.”¹⁵ It is issued by the voivode for a period of one year. It should be emphasized that its functionality is highly limited – this document confirms the identity of the holder on the territory of the Republic of Poland, but it does not confirm their citizenship or entitle them to cross the border.¹⁵

There is a significant disparity in the rights to travel depending on the status obtained. Persons who have “consent for a tolerated stay” are not entitled to cross the border.¹² As a result, even after their stay is legalized, these persons become “prisoners” in the territory of Poland, deprived of the basic attribute of freedom, which is the freedom of movement. Only persons who have “consent for a stay for humanitarian reasons” have the right to travel in the Schengen area.¹⁰ This difference shows that the legal status of a stateless person in Poland is hierarchical and inconsistent, which has a significant impact on the personal and professional lives of these persons.

3.2. Access to the labor market, healthcare, and social assistance

An analysis of the available legal regulations indicates that stateless persons who have obtained consent for a tolerated stay or for humanitarian reasons have free access to the Polish labor market.⁴ This means that they can take up employment without the need to obtain an additional work permit.¹⁶ This right is crucial for their social and economic integration.

In the area of healthcare and social assistance, the situation of stateless persons is more varied. Persons whose stay is regulated by consent for a tolerated or humanitarian stay have the right to partial or full social assistance and access to medical care.⁴ However, stateless persons with an unregulated status have access only to healthcare in emergency cases.⁴

With regard to the right to education, the Polish Constitution guarantees everyone the right to education.¹⁹ School attendance is mandatory for all children in Poland up to the age of 18, regardless of their citizenship or residence status, which ensures access to education also for stateless children.¹⁹ Adults who have consent for a tolerated stay also have the right to education within the framework of qualifying vocational courses.¹⁸

4. Acquisition of Polish citizenship and the prevention of statelessness

4.1. Paths to acquiring citizenship

Stateless persons can apply for Polish citizenship through two main paths. The first is the granting of citizenship by the President of the Republic of Poland.³ The second is a simplified procedure – recognition as a Polish citizen by the voivode.³ Despite the existence of these paths, the requirements for legal residence and documentation constitute serious barriers in the naturalization process.⁵

4.2. Polish Card: fragmentation of regulations

The provided materials indicate some inconsistencies regarding the possibility of obtaining a Polish Card by stateless persons. On the one hand, sources state that a Polish Card cannot be granted to a person who already has the status of a stateless person.²⁰ On the other hand, there are regulations that allow for a Polish Card to be granted to persons with stateless status but who are citizens of Ukraine, the Republic of Belarus, or the Russian Federation.²¹ The condition is to meet additional criteria, such as a declaration of belonging to the Polish Nation, knowledge of the Polish language, and cultivation of Polish traditions and customs.²¹

This apparent contradiction highlights the fragmentation and lack of a coherent approach in Polish migration law. Instead of creating a uniform system, the law imposes various regulations that are a response to specific, often historically or politically motivated problems. The exception for stateless persons from specific countries is an example of such an approach, which privileges certain groups of persons without citizenship. It undermines the idea of the universality of rights and raises questions about the equal treatment of all stateless persons, regardless of their origin.

4.3. Prevention of statelessness in children

Polish law contains partial legal safeguards aimed at preventing statelessness in children. According to the Act on Polish Citizenship, a child born on the territory of the Republic of Poland whose parents are unknown or are stateless persons automatically receives Polish citizenship.⁴ Similarly, a child adopted by a Polish citizen who has not reached the age of 16 also acquires Polish citizenship.⁶

Nevertheless, there are gaps in the law that can lead to cases of statelessness. There are no full guarantees to prevent statelessness for children born in Poland whose parents are unable to pass on their citizenship to them.⁴ In the case of children born abroad whose parents are of the same sex, practical and discriminatory obstacles to obtaining citizenship may arise, which also increases the risk of statelessness.⁴

5. Conclusions, systemic gaps, and recommendations

5.1. Analysis of the hierarchy of protection

A legal analysis of the status of stateless persons in Poland allows us to conclude that the Polish legal system does not treat statelessness as a problem per se, but as a consequence of other legal situations, which leads to the establishment of a hierarchy of protection. In contrast to refugee status, which is a form of international protection, consent for a tolerated stay or a humanitarian stay is a “national form of legalization of stay” in the absence of the possibility of deportation.¹¹ This distinction results in the introduction of a “second category” of rights, which in many aspects are more limited than those available to refugees.

The difference in the path to permanent residence is a clear example of this. Persons with consent for a tolerated stay can apply for a permanent residence permit only after 10 years of uninterrupted stay ²², while refugees with a permanent residence permit receive a residence card valid for 10 years, and their status is indefinite.²³ This differentiation indicates that refugees gain full protection and recognition, while stateless persons receive only “tolerance” of stay, which does not lead to a stable and full legal status.

5.2. Critical assessment of gaps and inconsistencies

The presented analysis reveals a number of key gaps and inconsistencies in the Polish legal system regarding statelessness. The lack of a formal definition, the lack of a dedicated procedure for determining status, and the inconsistency of statistical data lead to a systemic problem that makes it difficult to identify and provide adequate assistance. The law, instead of being a coherent instrument, becomes a collection of fragmented and sometimes mutually contradictory regulations that do not provide comprehensive protection to stateless persons. This problem is further exacerbated by the lack of standard training for officials, which leads to inconsistent interpretation of regulations in practice.⁴

5.3. Recommendations

Based on the analysis carried out, in order to ensure effective and full protection for stateless persons, the following legislative and administrative steps must be taken:

Ratification of the Conventions: The fundamental and most important step is the ratification of the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.³ This ratification would allow for the introduction of a legally binding definition of a stateless person into the Polish legal system and the establishment of a coherent and comprehensive legal framework.³

Introduction of a dedicated procedure: It is necessary to create a separate, formal procedure for determining stateless status (SDP), in accordance with international standards. Such a procedure would ensure a stable and predictable legal status for stateless persons, independent of expulsion procedures.⁴

Unification of data and terminology: It is recommended to establish a uniform database and coordinate the activities of government institutions (such as the Office for Foreigners, the Border Guard, the Central Statistical Office) to unify terminology and collect reliable data on the population of stateless persons.⁶

Comprehensive analysis of gaps in citizenship law: The Act on Polish Citizenship should be reviewed to remove gaps that may lead to statelessness in children, including those born in Poland whose parents are unable to pass on their citizenship to them.⁴

Table 1: Comparison of definitions and regulations of statelessness

Criterion	International Law (1954 Convention)	Polish Law (Act on Foreigners, Act on Polish Citizenship)
Source	1954 Convention ¹	National law, Act on Foreigners ⁸
Definition	Legal definition ¹	Lack of a legal definition, informal concept ³
Ratification by Poland	Not ratified ³	Not applicable
Available procedure	Dedicated SDP procedure	Lack of a dedicated procedure, identification within other proceedings ⁴

Table 2: Comparison of rights and obligations depending on the right of residence status

Criterion	Consent for a tolerated stay ⁴	Consent for a stay for humanitarian reasons ¹⁰	Refugee status (for comparison) ¹⁴
Access to the labor market	Yes ⁴	Yes ⁴	Yes ¹⁶
Access to healthcare	Partial ⁴	Yes ⁴	Yes ¹⁶
Access to social assistance	Yes ⁴	Yes ⁴	Yes ¹⁶
Access to travel	No ¹²	Yes (Schengen area) ¹⁰	Yes (Convention Travel Document)
Path to permanent residence	After 10 years ²²	Yes, indefinite ¹⁰	Yes, indefinite ²³
Document validity	2 years ¹²	Residence card exchanged every 2 years ¹⁰	Residence card exchanged every 5 years ²⁴