1. Introduction
1. The 1954 Convention relating
to the Status of Stateless Persons defines a stateless person as
someone “who is not considered as a national by any State under
the operation of its law”.
This definition
is recognised as customary international law. It has been interpreted
by the Office of the United Nations High Commissioner for Refugees
(UNHCR) as requiring “a careful analysis of how a State applies
its nationality laws in an individual’s case in practice and any
review/appeal decisions that may have had an impact on the individual’s status.
This is a mixed question of fact and law”.
Therefore a person may be stateless
even if an interpretation of the nationality law of their country
of origin shows that they have a right to that nationality.
2. There are more than 10 million stateless people in the world
today, and every year, as many as 70 000 children are born into
statelessness. There are over 600 000 stateless people in Europe
alone. The majority of these people have been born in, and lived
their entire lives in Europe. Many would not be stateless today
if all European countries had comprehensive safeguards against childhood
statelessness. There are also some stateless refugees and migrants
in Europe
and there are serious concerns
as to the ability of all children born in exile to refugees who
come to Europe – including in growing numbers from Syria – to secure
a nationality.
3. It is in this context that in this report I call on European
States to take all necessary steps to eradicate statelessness, and
in particular childhood statelessness. This report also demonstrates
the importance of identifying the stateless persons living in each
European State, to ensure their protection until they receive a nationality.
The failure to do so is disadvantageous to both the individual and
their enjoyment of rights, but also to States themselves. It also
further obstructs States’ ability to avoid childhood statelessness
from arising within their territory.
2. Situation of stateless persons
in the Council of Europe member States
2.1. Background
4. The history of statelessness
in Europe is well documented. The 1951 Convention relating to the
Status of Refugees and the 1954 Convention relating to the Status
of Stateless Persons were born out of the en masse forced displacement
and arbitrary deprivation of nationality that took place in the
lead up to and during the Second World War. Indeed, all core human
rights treaties which protect the right to a nationality are post-war instruments.
After the Second World War, the next significant historical event
which caused large-scale statelessness in Europe was the end of
the Cold War and the break-up of the Soviet Union and Yugoslavia. Despite
the promulgation of the Convention on the Avoidance of Statelessness
in relation to State Succession to avoid statelessness in this context,
the largest stateless populations in Europe today are the legacy
of this historical period.
5. In contemporary Europe, the refugee crisis which has seen
hundreds of thousands of Syrian and other refugees seek safety and
a more secure life in Europe, brings with it a new statelessness
challenge, which, if not addressed comprehensively, will see a further
increase in Europe’s stateless population, including the children
of refugees born in Europe. This is particularly so because Syria
and other countries of origin have stateless populations and gender
discriminatory nationality laws which deny women the right to confer
their nationality on their children.
6. Due to a lack of understanding and a lack of political commitment,
some European States have been reluctant to take concrete measures
to end childhood statelessness. The failure to ensure that every
child enjoys the right to a nationality has serious consequences
on children, their families and society as a whole.
2.2. Legal and regulatory framework
7. The legal and regulatory framework
for Council of Europe member States related to statelessness and every
child’s right to a nationality is extensive. Relevant regional and
international instruments collectively provide a comprehensive safeguard
against childhood statelessness. However, gaps in national laws
and policies hinder the implementation of these obligations.
8. Of the Council of Europe instruments, Article 6.2 of the European
Convention on Nationality (ETS No. 166) states that “[e]ach State
Party shall provide in its internal law for its nationality to be
acquired by children born on its territory who do not acquire at
birth another nationality”. Also relevant is the Convention on the
Avoidance of Statelessness in relation to State Succession. While
the European Convention on Human Rights (ETS No. 5) does not explicitly
recognise the right to a nationality, Article 8 of the Convention
(right to respect for private and family life) has been interpreted
to include respect for a nationality in the context of the denial
of citizenship
or
uncertainty of recognition of citizenship.
The principles
of the best interests of the child
and of non-discrimination,
as
they have been applied by the Court, are also relevant in this regard.
9. In addition to the Council of Europe framework, the right
to a nationality is protected under various international instruments
such as Article 15.1 of the Universal Declaration of Human Rights;
Article 7 of the Convention on the Rights of the Child (CRC); Article
1 of the 1961 Convention on the Reduction of Statelessness (“1961
Convention”); Article 5 of the International Convention on the Elimination
of All Forms of Racial Discrimination; Article 24.3 of the International
Covenant on Civil and Political Rights; Article 9 of the Convention
on the Elimination of All Forms of Discrimination Against Women;
Article 18 of the Convention on the Rights of Persons with Disabilities;
and Article 29 of the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families.
10. The most extensive protection against childhood statelessness
can be found in the Convention on the Rights of the Child. Article
7.1 obligates States to register all births immediately and to ensure
the child’s “right to acquire a nationality”. Article 7.2 explicitly
requires the implementation of measures to avoid statelessness. Furthermore,
Article 8 of the convention protects the right of children to preserve
their identity, including nationality. These provisions are to be
read in light of Articles 2 and 3 which prescribe non-discrimination
and the best interests of the child, respectively, as guiding principles
for the implementation of all child rights. The Committee on the
Rights of the Child has clarified that States are obliged, under
the Convention on the Rights of the Child, to grant nationality
at birth or as soon as possible after birth to
all children born on the territory
who would otherwise be stateless, without restriction.
Article 1.1 of the 1961 Convention
also obligates States to “grant its nationality to a person born
in its territory who would otherwise be stateless” – a provision
that encompasses
all stateless
children and may not be made subject to lawful residence requirements
imposed on either the child or the parents.
11. The Convention on the Rights of the Child and the European
Convention on Human Rights are universally ratified by the Council
of Europe member States. Twenty-nine States are Party to the 1961 Convention
and 20 to the European Convention on Nationality (a total of 31
European States are thereby party to either or both).
Therefore it is evident that all European
States have a strong obligation to respect every child’s right to
a nationality, and to eradicate childhood statelessness.
12. However, the nationality laws of several European countries
contain provisions that cause or prolong situations of statelessness.
The laws of four countries (Cyprus, Norway, Romania and Switzerland)
contain no or only minimal safeguards against childhood statelessness,
and therefore are most in breach of regional and international obligations.
Other countries have conditional safeguards that do not comprehensively
protect against childhood statelessness. For example, in 11 countries,
the safeguard kicks in only if the child’s parents themselves are
stateless or of unknown citizenship.
However,
there are circumstances in which parents who have a nationality
cannot pass on their nationality to their children.
In
14 countries, the safeguard is dependent on residence requirements
that are not in accordance with international norms.
13. In this context, it is significant that European States are
taking new initiatives to address childhood statelessness. The increased
engagement of members of the Parliamentary Assembly, including through
the motion for a resolution of 5 February 2015 on the need to eradicate
statelessness of children, is an important step. The use of the
Universal Periodic Review by European States to make recommendations
to their fellow States to address statelessness is also promising.
For example, the Netherlands, Norway and Russia have all made relevant
recommendations to Latvia; Austria has made recommendations to Russia;
and Bosnia and Herzegovina and Russia have made recommendations
to Estonia.
14. Positive developments can also be found at national level.
For instance, Estonia – a country where several hundred children
were still being born into statelessness each year – has passed
important legal amendments which entered into force on 1 January
2016. Children who are born today in Estonia acquire Estonian citizenship
by naturalisation automatically and as of birth, if their parent(s)
are stateless and have been legally residing in Estonia for at least
five years at the time of the birth of the child. Moreover, Armenia amended
its law in May 2015 to introduce a comprehensive safeguard granting
nationality to all children born on the territory if they would
otherwise be stateless.
3. The importance for children
of having the right to a nationality
3.1. Benefits of ensuring the
right to nationality for children
15. All children, including stateless
children, are entitled to the protection of regional and international
human rights law. However, the right to a nationality is an “enabling
right” and without a nationality, accessing all types of other rights
becomes more difficult. Children who are stateless face challenges
in all areas of life, including: entering or completing schooling;
accessing health-care services; obtaining a birth certificate; receiving
social security; obtaining a passport or any form of identity documentation;
travelling abroad and exercising their right of free movement.
They can be vulnerable to arbitrary
and lengthy detention, and in extreme cases, they can be victims
of trafficking and even targets for persecution.
16. This is why Nils Muižnieks, the Council of Europe Commissioner
for Human Rights, has stated that: “It is in the child’s best interest
to have a nationality”.
In its
recent report on the need to end childhood statelessness, the UNHCR
has illustrated how stateless children and young people encounter
challenges or problems accessing education and health care, and
finding work.
Stateless children often face uncertainty, poverty,
marginalisation and discrimination; they are robbed of their childhoods.
Because of their lack of a nationality,
stateless children are disadvantaged, vulnerable and unable to develop
themselves fully;
with serious socio-economic consequences.
17. Through ensuring the child’s right to a nationality, the first,
important step is taken to prevent such negative consequences. Children
who have a nationality are more likely to be able to grow up in
dignity and develop to their full potential with an identity of
their own. Moreover, children who have the right to become a citizen
can truly belong in and contribute to society.
18. The advantages of ending childhood statelessness also extend
to States. Eradicating statelessness and exclusion is necessary
to create more cohesive, secure and productive communities. Giving
every child the opportunity to reach their full potential is ensuring
that each State reaches its full potential.
19. Taken together, regional and international legal norms, the
serious impact of statelessness on the lives of children and the
advantages to children, families, communities and States in ensuring
all children have a nationality are convincing reasons for all States
to take comprehensive measures to eradicate childhood statelessness.
3.2. Measures to eradicate statelessness
of children
3.2.1. Legislative and regulatory
measures
20. The recent
Mennesson case
brought to light one of
the challenging contexts in terms of nationality and statelessness:
surrogacy.
The applicants in this case were
a French couple (commissioning parents) and their two children born
through a surrogacy arrangement in the United States. They complained
to the European Court of Human Rights that Article 8 of the European
Convention on Human Rights had been violated because the French
authorities refused to recognise their family ties, to the detriment
of the best interests of the children. Given that French law outlaws
surrogacy as a method of assisted reproduction, the government emphasised
that allowing the registration could lead to inconsistent application
of this prohibition.
The
Court accepted that it is legitimate for France to discourage persons
from prohibited forms of assisted reproduction, but held that the
effects of the non-recognition in French law of the legal parent-child relationship
impacted not only the (intended) parents, but also the children,
“whose right to respect for their private life – which implies that
everyone must be able to establish the substance of his or her identity,
including the legal parent-child relationship – is substantially
affected. Accordingly, a serious question arises as to the compatibility
of that situation with the child’s best interests, respect for which
must guide any decision in their regard”.
Thus,
the Court concluded that the two children’s right to respect for
private life under Article 8 of the Convention had been violated.
21. While surrogacy is a niche issue, the
Mennesson case
has a much wider relevance. It underscores the primacy of the principle
of the best interests of the child, even in the face of matters
of national law and policy. Given that statelessness is never in
the child’s best interest,
the implications
of the
Mennesson case are
that all States would do well to revise their legislative and regulatory
frameworks to comprehensively protect against childhood statelessness.
As stated above, such steps are also in keeping with obligations
under the Convention on the Rights of the Child, the European Convention
on Nationality and the 1961 Convention on the Reduction of Statelessness.
22. Eradication of childhood statelessness is achieved by ensuring
that a) no child is born stateless and b) all children who are stateless
get a nationality. In order to ensure a sustainable and comprehensive
solution, steps should also be taken to identify stateless adults
and grant them nationality.
23. In terms of the former requirement, nationality should be
granted to all children born on the territory of the State and who
would otherwise be stateless. The Committee on the Rights of the
Child has made as many as 27 recommendations to States in this regard.
In order to fulfil this obligation,
nationality should be granted “regardless of the parents’ legal
(residence) status; regardless of the parents’ or legal guardians’
sex, race, religion or ethnicity, social origin or status; regardless
of the parents’ (past) opinions or activities; and regardless of
the child being part of a(n) (ethnic) minority group, including
children born to (former) refugees”.
This safeguard should be effectively
implemented by all European States in order to end children being
born into statelessness in Europe. This in turn requires States
to determine whether the child has acquired another nationality
at birth or would in fact be stateless.
24. In terms of the latter requirement, it is important that States
retroactively implement all laws which grant nationality to children
born on the territory and who would otherwise be stateless. The
amendment to Estonia’s law highlighted above partially fulfils this
requirement by being retroactively implementable to all children
under the age of 15. However, this law will not benefit stateless
children and adults over the age of 15. Additionally, States should
also implement measures to facilitate the naturalisation of stateless
children who were not born in the territory, but are resident in
it. This is particularly important to ensure the full integration
of stateless refugee and migrant children. Consequently, it is important
that States establish and implement properly functioning statelessness
determination procedures to identify and protect stateless migrant
children on their territory, and facilitate their naturalisation
in line with the relevant legal standards.
By
establishing such processes, States would also facilitate the identification
and naturalisation of stateless adults.
25. Another worrying practice in Europe which can be addressed
through legislative and regulatory measures, is ensuring that children
are not registered as having “unknown nationality”. Some, but not
all children registered as such, are likely to be stateless. This
is quite a widespread phenomenon in Europe with implications as
damaging as childhood statelessness.
Identifying
accurately whether the child has a nationality, and if so, what
that nationality is, or whether the child is stateless, is a first
essential step to protection and the reduction of statelessness.
The implementation of effective statelessness determination procedures
will drastically reduce the number of children who are registered
as having an “unknown nationality”.
26. A further area in which legislative and regulatory measures
is required is in resolving existing situations of statelessness.
The largest cause of childhood statelessness in Europe and worldwide
is inheriting this status from parents.
States,
particularly those with large resident stateless populations, must
take all steps necessary to resolve existing situations of statelessness.
27. Universal and timely birth registration can also help reduce
childhood statelessness. Whilst the acquisition of nationality and
birth registration are usually two separate processes, birth registration
is critically important for ensuring the right to a nationality
for every child.
Europe
has very high birth registration rates, but certain groups of vulnerable
children remain systematically unregistered.
Hence,
States are urged to ensure birth registration for every child. Any
obstacles to registration must be removed in order to guarantee that
all children can equally access birth registration.
3.2.2. Procedural measures
28. In order to act on the above,
States may find it necessary to reform national laws, policies and regulations.
In addition, in order to make access to nationality a reality for
all children, States are likely to need to take measures of a more
procedural nature to provide support, for instance by making information
and (legal) advice available to children and their families. Similarly,
the right to review and appeal administrative and judicial decisions
and the right to interpretation and translation if necessary must
be afforded to children and their families. With regard to statelessness
determination procedures, States should ensure that their frameworks
comply with UNHCR Guidance.
4. Conclusions
and recommendations
29. States are urged to take account
of the particular vulnerabilities of stateless children and to take
the following steps to eradicate childhood statelessness in Europe:
- all States which have not yet
done so are urged to become parties to the European Convention on Nationality,
the Convention on the Avoidance of Statelessness in relation to
State Succession, the 1954 Convention relating to the Status of
Stateless Persons and the 1961 Convention on the Reduction of Statelessness;
- all States are urged to participate in and support the
United Nations Global Action Plan to End Statelessness by 2024 by, inter alia, drafting and implementing
national action plans in collaboration with the UNHCR and by financially
supporting the Global Action Plan;
- all States which do not have adequate safeguards to protect
against childhood statelessness are urged to review and amend their
law and policy frameworks to bring national law into compliance
with the Convention on the Rights of the Child, the European Convention
on Nationality and the 1961 Convention on the Reduction of Statelessness;
- all States with existing stateless populations are urged
to take measures to resolve statelessness, through law and policy
reform and implementing steps;
- all States which do not have statelessness determination
procedures which comply with UNHCR guidelines are urged to introduce
new procedures or upgrade existing ones, to ensure that all stateless persons
in their territories can be identified, protected and ultimately
acquire nationality through facilitated naturalisation;
- all States are urged to take special measures to ensure
that refugee and migrant children and the children of refugees and
migrants born on their territories are protected from childhood
statelessness;
- all States are urged to ensure that the birth of every
child born in their territory is registered immediately. In particular,
States are urged to ensure that children born into vulnerable communities
are registered at birth.