Commissioner for Human Rights

The Commissioner for Human Rights has received complaints from citizens pointing to different practices regarding the crossing of the Polish border by persons with dual citizenship (including Polish citizenship) using another country's passport. Some applicants claim that they were not allowed to leave the country on the basis of another country's passport.
The Border Guard cites the Polish Citizenship Act from which it draws the following interpretation: "If a Border Guard officer, in the course of border control at the exit from Poland, obtains information that a traveller has Polish citizenship and does not have a valid Polish document, i.e. - depending on the direction of travel - a passport or identity card, he is obliged not to allow such a person to cross the border". 
In the Commisioner's view, the legal norm invoked by the Border Guard when refusing to allow Polish citizens to cross the border in order to leave the country on the basis of a foreign passport does not derive from this provision. The provisions in question must be interpreted in the light of Article 5(1) of the Passport Documents Act. It confers a right, not an obligation, to hold a passport document. Moreover, Article 5(2) of the Identity Documents Act imposes an obligation to hold an identity document only on adult Polish citizens residing in the territory of the Republic of Poland.
Another argument against the Border Guard's interpretation arises in the case of persons with dual Polish and EU citizenship. In the case of such persons, the interpretation adopted does not seem to be in line with the right of EU citizens to freedom of movement guaranteed by Article 21 of the Treaty on the Functioning of the EU.
The Border Guard replies that, although Polish law allows for multiple citizenship, it requires that such a person be treated as if he or she had only Polish citizenship. The Border Guard's respect for the principle of exclusive and superior Polish citizenship when crossing the border also has a much wider significance, for example, in terms of preventing the departure from the Republic of Poland of Polish citizens who have been banned from leaving the country by the courts and for whom a permit to leave the country on the basis of a document issued by another state would make it possible to effectively circumvent the ban.
As regards the possibility for the Border Guard to allow Polish nationals who are also nationals of another EU Member State to cross the national border of the Republic of Poland only on the basis of travel documents issued to them by that other Member State as beneficiaries of the 'right to free movement under Union law', the Commission considers that this possibility is contrary to Article 2(1)(b) of the Directive. This is contrary to Article 2 para. 3 of the Act on entry to, stay in and departure from the territory of the Republic of Poland of nationals of the Member States of the European Union and their family members (Journal of Laws of 2021, item 1697, as amended), which clearly excludes Polish nationals from the right to exercise this freedom in our country. 
Finally, the voluntary nature of holding a passport in Poland has been questioned, since while the mere fact of holding a passport is a right and not an obligation, the possession of this document is in many cases necessary and required by law when crossing the state border.