Same-sex parents and citizenship law

Last month, when reporting on the first gender neutral passport issued by the Netherlands, we discussed the Coman judgment of the Court of Justice of the European Union. This judgment had an important impact on the mobility of those who have entered into same-sex marriages, since the Court held that such marriages need to be recognised between the EU Member States for the purposes of free movement. In an interesting follow up, Anna Mazurczak has analysed a case of 10 October 2018 decided by the Polish Supreme Administrative Court (SAC) in which same-sex parents are recognised. While a lower court had refused to enter the British birth certificate of the four-year-old son of two women who were Polish citizens into the Polish birth register based on an ordre public argument, the SAC overruled the lower court’s ruling. In the words of Mazurczak, ‘the refusal to transcribe a foreign birth certificate would, according to the SAC, render a child an “illegal person”. Such status would restrict the child’s access to other rights and freedoms. The best interest of a child and the principle of non-discrimination were the key elements in the SAC’s line of reasoning’.

The case also has important citizenship consequences. While the parents are now ‘able to file for a Polish passport, ID card and a social security number on behalf of the child’, the refusal to enter a British birth certificate in the Polish birth register in a different case earlier this year rendered a minor in a similar position a de facto stateless person.

Author: Dr. Olivier Vonk