On Thursday, the Sejm passed the act on passport documents prepared by the Ministry of Interior and Administration. According to the Ombudsman, the new law will affect many Polish citizens born outside Poland whose birth certificates indicate same-sex parents. The Ministry of Internal Affairs and Administration announced that the practice, which will be valid also after the entry into force of the Act, “enables the issuance of a passport document to a minor whose foreign birth certificate has persons of the same sex as parents, without a transcription of this document.”
On Thursday, the Sejm passed the act on passport documents prepared by the Ministry of Interior and Administration. creating the Register of Passport Documents and thus launching e-services. 396 deputies voted for the bill, 25 were against it, and 20 abstained.
Earlier, the deputies adopted two amendments to it. One of them states that the list of services to which the minister for computerization provides data collected in the Passport Document Register (excluding biometric data in the form of fingerprints) will be extended to include the Marshal’s Guard.
Four changes proposed by the Left were lost in the vote – the Left wanted, among other things, to replace the wording “mother and father” used in the act with the word “parents”. This concerns, inter alia, the issue of issuing a passport – the act stipulates that on behalf of the child, the application for issuing it is submitted by “mother, father, legal guardian or probation officer”. Opposition MPs were concerned that this could cause problems if the child’s parents were of the same sex under the laws of another country.
Commissioner for Human Rights: many Polish citizens do not obtain documents
The Ombudsman also pointed to this problem. “Many Polish citizens and many female citizens born outside the territory of the Republic of Poland, whose birth certificates indicate persons of the same sex as parents, do not obtain documents enabling the exercise of all rights resulting from citizenship, including EU citizenship” – noted Marcin Wiącek in a letter to the deputy head Of the Ministry of Interior and Administration of Paweł Szefernaker.
The Commissioner for Human Rights emphasized that “the requirement to have a PESEL number when applying for passport documents by people who cannot obtain a transcription of their birth certificate, therefore prevents them from receiving these documents”.
Bossernaker: no one is excluded
During his work in the Sejm, the deputy head of the Ministry of Interior and Administration, Paweł Szefernaker, emphasized that such a provision is consistent with what is included in the Family and Guardianship Code. He also indicated that one person would be taken into account when issuing the document: the mother or the father.
The deputy minister assured that “in Poland, no one is excluded, no matter what family he or she lives in”, because for some time offices a practice has been used in which every citizen receives a document, regardless of what is written on a foreign birth certificate .
Ministry of Interior and Administration: the change was not inspired by the analysis of any non-governmental organization
The editorial office of tvn24.pl asked the Ministry of Interior and Administration, among other things, with the question of how the ministry justifies the change of the concept of “parents” to “mother and father” in Art. 35 and whether it was caused or inspired by a study submitted by Ordo Iuris, dated March 31, 2021.
In response, the Press Department of the Ministry of the Interior and Administration announced that the replacement of the concept of “parent” with the terms “mother” and “father”, “made in accordance with the opinion of the Government Legislation Center,” on the basis of the act passed on Thursday, “results from the harmonization of the application of these terms within the Polish legal system” .
“Pursuant to Art. 619 of the Act of February 25, 1964, Family and Guardianship Code, the mother of the child is the woman who gave birth to the child. On the other hand, the provisions on paternity, regardless of how it is established, always mention a man as the child’s father. At this stage of work on the act, the provision was consulted with the Government Legislation Center, “the ministry said.
He added that “it was not caused or inspired by an analysis of any non-governmental organization.”
Ministry of Interior and Administration on issuing a passport to a citizen with a birth certificate in which same-sex parents are indicated
According to the Ministry of Interior and Administration, “the practice, which will be valid also after the entry into force of the act enacted on January 13 this year, makes it possible to issue a passport document to a minor whose foreign birth certificate has persons of the same sex as parents, without a transcription of the act”.
“This approach fully corresponds to the current jurisprudence of administrative courts, including the resolution of the Supreme Administrative Court of December 2, 2019 (ref.no. II OPS 1/19) and the judgment of the Provincial Administrative Court in Warsaw of November 20, adopted by a bench of seven judges. 2020 (reference number IV SA / Wa 1618/20). Therefore, a minor Polish citizen with a foreign birth certificate in which they are listed as parents of a person of the same sex may receive a passport document, and thus the proper protection of rights is ensured. child “- the ministry said.
Ministry of Internal Affairs on the judgment of the CJEU
The Ministry of the Interior and Administration indicated that “the practice of issuing documents containing only the data of the child’s mother, adopted by the Polish authorities issuing identity documents (in the case of entering the data of two mothers in a foreign birth certificate), does not contradict by a judgment of the CJEU issued in case C-490/20 “of December 14, 2021.
“As regards a minor child who is a Union citizen and whose birth certificate issued by the competent authorities of the host Member State indicates two persons of the same sex as his parents, the Member State of which that child is a national is obliged, on the one hand, to issue him with an identity card. or a passport without the national authorities having to draw up a birth certificate in advance, and, on the other hand, to recognize, like any other Member State, a document originating from the host Member State allowing the child in question to use, together with each of these two persons, the right to his right to move and reside freely within the territory of the Member States. “
“A child whose birth certificate issued by the host state includes persons of the same sex as parents, will be able to travel with each of these persons separately, on the basis of an identity card or passport containing only the mother’s details and a birth certificate issued by the host state, in who have the same sex as parents. The child, having the above-mentioned documents, will therefore be able to enjoy the right guaranteed by EU law to exercise the free movement of people in the European Union “- reported tvn24.pl the Ministry of Internal Affairs and Administration.
He added that he was referring to the position of the Human Rights Defender in a letter from November 9, 2021, by the Szefernaker. The deputy head of the Ministry of Interior and Administration indicated that if two women were entered as parents in a foreign birth certificate, “the child will receive an ID card in which the details of the woman who is the child’s mother will be disclosed, and the column regarding the father will be left blank.”
“A similar procedure will also apply when two men are entered in the foreign birth certificate of a child. Then the identity card will reveal the details of the man who is the child’s father, and the column regarding the mother will be left blank” – he wrote.
The act on passport documents will now go to the Senate. The regulation is expected to enter into force on March 28, with the exception of some regulations. At that time, the Act on Passport Documents of 2006 will no longer apply.
The Act on Passport Documents
The main objective of the act is to create the Passport Document Register (RDP), which would replace the current Central Register of Issued and Canceled Passport Documents (CEWiUDP) and local registers. RDP is to be a component of the State Registers System, which currently combines six registers, including PESEL, identity cards (RDO), marital status (RSC) or contact details (RDK).
The construction of the RDP will mean that you will not have to fill in a paper passport application. After the changes, the electronic application will be generated by a passport officer and the citizen will be digitally signed. New electronic services will also be launched, incl. the possibility of checking the validity of the passport or invalidation of the passport after it is lost by the holder.
In addition, the citizen would receive notifications via the CDR about changes in the status of the passport, e.g. the impending expiry date. Parents will also be able to apply for a passport for a child under 12 years of age – the proposed provisions will lower the age limit for issuing passports with a 10-year validity period and a signature from 13 to 12 years of age.
The Act also details the issues related to the passport book – its structure and scope of data. It also aims to systematize passport fees. In the Regulatory Impact Assessment, the draft act states that it provides, inter alia, replacing the extensive system of tax reliefs with specific amounts that will be included in the executive regulation to the act.
The ministry also proposes changes regarding second passports, including the simplification of the procedure for applying for such documents. It would consist in omitting the issuing of a decision in this matter by the Minister of Interior and Administration – it would start directly with the voivode or consul. The validity period of such passports would also be extended from 2 to 3 years.
One of the proposals is also the possibility of issuing a temporary passport to a person who already has a passport document. As explained by the project promoters, this change would secure the situation of people who crossed the border on the basis of an ID card, but then lost it and, although they have a passport, do not have it while traveling. “Currently, in order to issue a temporary passport in such a situation, the passport authority must invalidate the passport, which means that it is necessary to apply for a new document and bear the costs associated with it” – stated in RIA.
The act also proposes to expand the catalog of eligible persons with a temporary passport. It is about minors who urgently need to go abroad due to, for example, continuing education or the need to provide them with care.
The course of proceedings in cases of refusal to issue and invalidation of a passport document at the request of, for example, a court or a public prosecutor, is also to be shortened. The decision made in this case would not be subject to appeal. “In such cases, the party will have the right to lodge a complaint directly with the administrative court” – stated in the RIA.