“Everyone has the right to a nationality”

Child refugees without nationality - A short overview of statelessness policy and practice in Spain

9 February 2017 | Aleksandra Semeriak Gavrilenok, ENS Associate member
#StatelessKids - Every child has the right to a nationality

Amira lived in Aleppo together with her husband and their two children when the conflict in Syria began. On several occasions, they thought about leaving the city, but it wasn’t until her husband’s disappearance that Amira decided to hastily flee to Lebanon. From there they would continue the journey on to Europe via North Africa. At the time of her husband’s disappearance, Amira was two months pregnant. Her son, Mohammed, was born in a makeshift camp on the border between Algeria and Morocco. A few months later, Amira made it to the asylum office at the borders' crossing point in Spanish autonomous city of Melilla, where she was able to submit their request for international protection. After their application got admitted for review by Spanish authorities, Amira and her three children obtained an identity document as asylum seekers, which includes a Foreigners' Identity Number (N.I.E.), a name, surname, date of birth and a nationality. While Amira and her first two children, who were born in Aleppo, are considered Syrian nationals, her youngest son, Mohammed, born on route, doesn’t have a birth certificate. So, what is Mohammed’s nationality?

Discriminatory laws

There are 27 countries in the world with nationality laws that do not allow women (or severely limit the right) to transfer their nationality to their children. 12 of these countries are located in the Middle East, including Syria, where only men can pass their nationality to their descendants. Amira has no valid legal proof of her marriage. In fact, Amira and her husband never needed this document in the past. Many others like Amira didn’t have time to take their documents or lost these after fleeing. Nowadays, due to the persistence of the conflict and the displacements, many marriages are not formalised and many children are born out of wedlock and not registered.

Amira can’t contact Syrian authorities or go to the embassy in order to acquire a copy of her marriage certificate or process a birth certificate for Mohammed, as contacting Syrian authorities, from which she fled, could jeopardize her asylum application and, most importantly, her and her children’s safety. Without a birth certificate and a document proving that Mohammed's father is a Syrian national and Amira's husband, Mohammed is, like thousands of other child refugees, at risk of statelessness.

Invisible Children

The vast majority of us are used to a variety of social, political and economic rights which we, as humans, consider inalienable. However, many of us ignore that these rights are guaranteed only when we’re citizens. Although the Universal Declaration of Human Rights states that "everyone has the right to a nationality", today an estimated number of 10 to 12 million people worldwide are lacking citizenship and, therefore, aren’t able to enjoy basic rights such as access to education, healthcare, housing, work or the right to vote. These people are defined as stateless persons and around 600,000 live in Europe, including thousands of children who grow up without a nationality, without belonging to any place. Children who grow up being invisible.

There are several reasons why a child can become stateless. Sometimes statelessness is passed from stateless parents to their children. In other cases, a child might be unable to acquire citizenship because of a conflict or an incompatibility between different nationality laws, or can’t prove their legal identity due to the absence of a birth certificate. Statelessness can also be a problem for some children of refugees who come from countries with discriminatory nationality laws, as in the case of Mohammed. There is also a high risk of statelessness due to the succession of States, when new countries are created and older ones cease to exist, as it happened, for example, after the dissolution of the Soviet Union and Yugoslavia. Lastly, other children at risk of being stateless are foundlings, internationally adopted and children born by surrogacy. There are also a number of administrative obstacles imposed by some States, which, among others, hinder the naturalization process due to discriminatory practices, whether ethnic, religious or gender-based. In all of these cases, children suffer unnecessarily.

Some countries make it impossible for stateless parents or parents who can’t prove their identity, to register the birth of their children, which is the main reason why stateless children can’t acquire an identity document or passport - a basic tool to access fundamental rights such as healthcare and education. The consequences of this situation are devastating.

The solution to the problem and the case of Spain

The only positive side of this issue is that it’s a completely solvable problem.

The conventions of the United Nations (UN) – the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness – provide a clear legal framework to define and address this issue. By establishing safeguards within national legislations governments could ensure that all children born within the territory of a country have the right to acquire a nationality if otherwise stateless.

However, despite the existence of numerous international instruments and national and regional treaties, there still remains much to be done in practice. Many States have not yet ratified the UN conventions, while others that have, fail to fulfil the established obligations. The lack of a mechanism to monitor the compliance and the lack of a common process to determine the statelessness status is complicating the protection of these people and delaying the solution at an European and global level.

In the Spanish case, the national legislation has sufficient guarantees so that a baby born on its territories can acquire Spanish nationality if otherwise stateless. But although Spain is one of the first and few countries in the world that has a specific legislative act to determine statelessness, we can still find major shortcomings and difficulties in the process. Having a regulation determining the status of stateless persons, approved by the Royal Decree 865/2001 of 20 July, unfortunately, doesn’t mean that this procedure is effective or implemented efficiently. Despite the numerous recommendations and requests by other States and by non-governmental organizations, Spain, being a State Party to the 1954 Convention, has not yet ratified the 1961 Convention or the 1997 European Convention on Nationality.

What does this mean for Mohammed?

If we look into the details of the Spanish legal framework, specifically Article 13.4 of the Spanish Constitution, stateless persons have the right to benefit from the right to seek asylum in Spain. This right is regulated by the Organic Law 12/2009, which, seven years after its approval, has still no regulations. This means a different handling of the asylum applications of stateless persons and refugees, entailing incompatibilities between the different laws that only end up harming the applicants. When Amira arrived to Spain, she should have been able to request the recognition of the stateless status for her son, but the current legislation excludes this type of applications at the asylum offices at the borders' crossing points. This is clearly a violation of the rights of stateless people, who, like Amira and her son, arrive to Ceuta or Melilla. In addition, and although the Royal Decree states that the applications for the determination of the stateless status have to be resolved within three months, in practice the process can end up lasting more than two years, thereby increasing the risk of vulnerability and social exclusion of the applicant and his or her family. Unlike asylum seekers, who are allowed to work in Spain six months after submitting their application, even if their case haven’t been resolved yet, people who have applied for the determination of their stateless status will not have the right to work until their case is resolved, and that can be two years or more after their arrival.

To avoid the emergence of a new population of stateless children among the refugees who are trying to reach Europe or neighbouring countries of conflict zones, governments, together with non-governmental organizations and civil society must work towards making the necessary changes to national legislations so that the applications for statelessness status will be resolved in the shortest possible period of time. Also, authorities have to make an effort to gather data on existing cases and work with the most vulnerable communities to ensure that all children receive a birth certificate. In the field of international cooperation, governments may seek the assistance of experts and UN agencies to work together in solving this problem.

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