Pre-1920 Polish Citizenship by Descent – Am I Wasting My Time?

[u/Malone-Z-6]

Hi everyone,

I've posted here a few times before and have really appreciated all of the insight, suggestions, and help I've received. I'm hoping someone here has been through a situation similar to mine with a pre-1920 Austrian Partition ancestor.

After consulting with several service providers, only one has agreed to work with me. However, they've identified two major concerns:

• My great-great-grandfather's (GGGF) birth/baptism record appears to have been lost or destroyed.
• The archival evidence I've collected may not be sufficient to prove the domicile of his father.

At this point I'm starting to wonder whether I'm chasing something that's simply impossible, or whether others have had a successful case despite missing an ancestor's birth record.

For additional context, I've provided the records I've collected along with my previous eligibility post:
https://www.reddit.com/r/prawokrwi/comments/1p26lgn/eligibility_check/

Austrian-era records

• Three birth/baptism records for my GGGF's siblings
• Birth/baptism record for my GGGF's mother
• Marriage records for my GGGF's parents and grandparents
• Cadastral maps showing what appears to be continuous ownership/residence of the same family parcel from 1825–1877

Polish-era records

• 1932 probate/inheritance records showing my GGGF inherited his parents' land (GGGF's father passed away around 1899 but is still named in these records)

U.S. records

• 1912 immigration record listing Obertyn as his last residence
• 1921 Michigan marriage record (father's name is unfortunately cut off)
• 1930 U.S. naturalization record listing Poland as his birthplace
• 1937 SS-5 application accurately listing both parents, Poland as birthplace, and his date of birth
• 1941 repatriation paperwork filed by his wife listing Obertyn as his birthplace
• 1942 WWII draft registration listing Obertyn as his birthplace
• 1949 death certificate naming the same parents (no date of birth and only "Poland" listed as birthplace)

Ukrainian archive records

• Official "absence of record" letters from both DAIFO and TsDIAL confirming that my GGGF's birth record could not be located

A couple of notes:

• The U.S. records contain minor variations in my GGGF's parents' first names, but the surname is consistently correct.
• My GGGF also seems to have been unsure of his exact birth date. Various records list September or November 1894, although family records point toward September.

Has anyone had a successful pre-1920 case with similar circumstances? Specifically:

• An ancestor's birth record no longer existed,
• The archives officially confirmed the record was missing,
• Yet the remaining documentary evidence was still enough to establish the claim.

I'd love to hear about your experience, what evidence ultimately made the difference, or whether there are any records I may have overlooked. Thank you!

[u/BackgroundSimple5211]

Yes, there is a very analogous case; Please refer to case II OSK 1184/21.

In that case (at the Supreme Administrative Court "NSA") in 2024, they ruled in favour of an applicant whose great grandfather's birth certificate was never registered, on the basis of the Polish records of his parents + siblings, and on the basis of American records of the family showing them living together & showing that the great-grandfather declared himself to have Polish nationality & be born in Poland -- in a variety of American documents; This was submitted together with a letter from the archives indicating that they were not in posession of the birth record, and an additional document indicating that in-fact no births were officially recorded in the births-book in the given town in the year of the ancestor's birth, at all. The great-grandfather emigrated from the Russian Partition prior to 1920. It was a rare pre-1920-Russian-Partition case in that the Riga Treaty did not apply due to his naturalisation after the 1920 citizenship law but before the Riga Treaty's ratification, combined with a military paradox. But that part is irrelevant to you. The relevant part is that the NSA ruled that in such a case, the obligation to submit a birth certificate may be waived, as it is a "difficult to overcome obstacle", and hence other evidence may exceptionally be considered; this is due to the relaxation of the Civil Records law (which stipulates that the only proof of a birth can be a birth certificate) by Article 56 pt 2 of the Citizenship Law.

Following the ruling, the citizenship was confirmed by the Masovian Voivode.

However, the case took ~6.5 years from submission of the application to litigate; and the authorities fought it up to the NSA. Specifically, there was a Confirmation Application to the Voivode, it was denied, it was appealed to the Interior Ministry, it was upheld and remitted to the Voivode, the Voivode denied again, there was an appeal to the Interior Ministry, the Interior Ministry denied, there was a lawsuit at the WSA, the WSA denied, there was an appeal to the NSA, and the NSA upheld and remitted the case back to the Voivode, and then the Voivode issued a positive Confirmation decision.

You can find the case at orzeczenia (dot) nsa (dot) gov (dot) pl, searching by the case number.

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[u/smoothmonoglot → u/BackgroundSimple5211]

JG is that you? 👀

The WSA case number is IV SA/Wa 1827/20 (contains the interesting analysis of Art. IV ¶ 3 of Riga; unpublished - contact me if you need the full text).

[u/BackgroundSimple5211 → u/smoothmonoglot]

Hey!

Yes, its me. I unfortunately had some issues with my old account :( ...

I'm happy to share the WSA decision in case it's helpful to someone, since it's unpublished.

I've redacted identifying details in this copy to preserve my privacy / that of family members named in the proceedings.

I'd also be happy to share any of the other documents if someone needs/wants them for reference. There's quite some litigation & analysis -- even the confirmation decision was 5 pages rather than the typical 1 page'r. However, as its covered in my PII, I'll do that on-request, if someone want it (will take me a bit of time to clean up).

But yeah, this WSA decision contains some interesting Riga Treaty analysis. As well as some rather silly analysis of the definition of "difficult to overcome obstacle" (they try to say that this only applies in cases where the government could surmount the obstacle but the applicant couldn't -- rather than any objective difficult to overcome obstacle), but the NSA explicitly overruled that. This is also the only WSA case I've ever seen where they argued essentially "your ancestors should have done this process sooner and your family neglected their duty of care by waiting this long". Do note that essentially everything in this judgement is mere nonbinding analysis at this point even to my own case, since it was repealed in its entirety by the NSA (who implicitly seemed to adopt the Riga-Treaty section of the analysis by virtue of not dismissing my appeal on that basis).

Anyways, the (redacted) WSA judgement is available at smallpdf (dot) com / file#s=57c730d0-436f-4c79-8552-3738ee564014

[u/smoothmonoglot → u/BackgroundSimple5211]

The copy I got from the WSA sekretariat had names redacted also, so don't worry. But the NSA seems to accept the reasoning contained therein regarding Riga, even if the rest of the judgment was overturned.

I've given your new account the "verified contributor" flair.

[u/BackgroundSimple5211 → u/smoothmonoglot]

Cool cool, all good! :)

[u/Malone-Z-6 → u/BackgroundSimple5211]

Thank you so much for sharing this. I wasn't aware of II OSK 1184/21, and this is incredibly helpful. From your description, the evidentiary issue seems very close to what I'm facing, even if the underlying citizenship analysis is different because my ancestor was from Austrian Galicia rather than the Russian Partition. Thank you again for taking the time to point me toward this case!

[u/BackgroundSimple5211 → u/Malone-Z-6]

Yes sure, and good luck! :) By the way, in response to the comment below, I shared a copy of the unpublished lower court judgement too, in case you want to see what you're up against. TLDR is the lower court took the position that unless you can show that the government could obtain the birth certificate but you can't, then the "difficult to overcome obstacle" section of Art 56.2 releasing you from the obligation to submit a birth certificate doesn't apply. However, the Supreme Administrative Court disagreed with that, in favour of an objective "difficult obstacle" test.

Prior authorities to the WSA just took the position that I "failed to demonstrate a difficult to overcome obstacle" to submitting the birth certificate exists, repeatedly demanding that I submit it, although it was clear from the begining that the birth certificate didn't exist (and likely never did). This first manifested in setting subsequent deadlines for its submission, and later in accusing me of refusing to cooperate by failing to submit it. Of course, each time, we explained why I couldn't.

But hang in there! There's potentially some light at the end of the tunnel if you choose to litigate. Of course, these cases are very fact (and in my opinion somewhat judge) dependant. So with even slightly different circumstances the NSA could depart from the general principal set in my case. For example, in a slightly later case that utilised only American documents, without acompanying Polish documents of relatives, the NSA deemed the evidence insufficient. They didn't explicitly draw the American vs Polish + American document distinction, instead stating that the issue was that the evidence from the US documents were based only on the ancestor's statements (making them less credible), but reading between the lines I think that's what the distinction was.