“Everyone has the right to a nationality”

Litigating Strategically: Stateless children born in the EU

12 November 2014 | Katja Swider, University of Amsterdam and René de Groot, Maastricht University

Does a child born in the EU, who would have been an EU citizen had the Member State of birth complied with its international obligations, but who is stateless instead, fall within the scope of EU law? This post suggests a strategy for seeking an answer to this question from the European Court of Justice (hereinafter: ECJ).

The problem

Article 1 of the 1961 Convention on the Reduction of Statelessness requires its State Parties to grant nationality to stateless children born on their territories either at birth ex lege, or upon application, subject to a limited list of possible conditions. Unfortunately, not all of the 19 EU Member States which have ratified this Convention comply with its Article 1, thus failing to provide citizenship to stateless children born in their territory in direct violation of their international obligations. The non-acquisition of any citizenship at birth by children is also at odds with a number of other international legal instruments, such as the European Convention on Nationality (Article 4(a,b)), the International Covenant on Civil and Political Rights (Article 24(3)) and the Convention on the Rights of the Child (Article 7(1)), with the latter enjoying a universal ratification rate in the EU.

Various deficient laws and administrative obstacles leave some EU-born children without any nationality. Should the statelessness of these children be accepted by the EU? Or, to put it in the words of the ECJ, did perhaps some Member States lay down rules on the acquisition of nationality by stateless children born in their territories without ‘due regard’ to EU law?

Applying the Rottmann judgment to acquisition cases  

An established line of case law of the ECJ states that ‘it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’ [emphasis added]. The Rottmann judgment shed some light on what having ‘due regard’ means in the context of loss of nationality that leads to statelessness. No case on the (denial of) acquisition of nationality has been ruled upon by the ECJ yet. However, the wording of Rottmann judgment does not draw a distinction between the ‘loss’ and the ‘acquisition’ when formulating standards of conduct for national authorities in the sphere of nationality. Paragraphs 62-63 of the Rottmann judgment are particularly important in this regard: they stipulate that the issue of restoration of a lost nationality should be governed by the same ‘due regard’ principles as the issue of loss. If the principles established in the Rottmann judgment apply to the acquisition of nationality through restoration, then why not to the acquisition of nationality by stateless children born in the EU?

Distinguishing from the Kaur judgment

It is important to clearly distinguish a case of a stateless child born in the EU from the facts in the Kaur judgment. In Kaur, the Court has confirmed the legal validity of the special declaration made by the United Kingdom excluding certain categories of its nationals, inter alia British Overseas Citizens, from the scope of EU citizenship. Unlike in the case of stateless children, no decision on either the acquisition or the loss of a nationality was at stake in Kaur. There was no dispute as to Ms. Kaur’s status as a British Overseas Citizen, and the judgment was purely concerned with the interpretation of a very peculiar and unique arrangement in British nationality law.

Selecting a case

Since there has been is no judgment yet on what ‘due regard’ to EU law means in the context of acquisition of nationality, the first such case should ideally be very straight-forward and simple, allowing the Court to at least confirm its jurisdiction on the matter.

A perfect case on childhood statelessness in the EU would therefore come from a Member State which has ratified the 1961 Convention, and according to its legislation is granting nationality ex lege at birth to stateless children born in its territory. Such states are, to the authors’ knowledge, Bulgaria, Finland, France, Hungary, Ireland, Lithuania, Portugal and Slovakia. If a child who does not acquire any other nationality is born in one of those states, it can be argued that he or she is an EU citizen by law, and that various arbitrary national administrative or legal obstacles (such as a lack of an adequate statelessness determination procedure, or a requirement as to the residence status of the parents) prevent the child from accessing this status.

Legitimacy and proportionality  

According to Rottmann, in order for a decision on nationality to be in line with EU law, it should legitimate and proportional.

One of the reasons for finding that the decision on the loss of nationality in Rottmann was legitimate was its compatibility with relevant international law, in particular with the 1961 Convention and the European Convention on Nationality. A suggested case of a child born in the EU without any other nationality would be in direct violation of Article 1 of the 1961 Convention, and would potentially contradict a number of other applicable international standards. This would form the basis for arguing that the national decision denying EU citizenship rights to an EU-born child without any other nationality is illegitimate in light of EU law.

It is interesting to note that nowhere in the Rottmann judgment is any importance  attached to whether the relevant international conventions have a legally binding force in the state concerned. However, in the context of strategic selection of a case, it is best to strive for the least ambiguous context, and to select a state which has ratified at least the 1961 Convention.

As to the proportionality, the Rottmann decision urges the national authorities ‘to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union’. Under this criterion, there is a lot of space for argumentation on the disproportionality of a national decision denying EU citizenship rights to a newborn child, taking into account all personal circumstances of a potential individual case. This might involve such issues as the threat of deportation, rights related to private and family life of the child, ability to access healthcare, education, ability to travel, and so on.

Requesting a preliminary ruling

Any domestic court in the EU can submit a request for a preliminary ruling to the European Court of Justice on the matter of interpretation of EU law, and the highest domestic court is obliged to make such a request if there is uncertainty concerning the applicable EU law. A party to the dispute can ask for a preliminary ruling request to be submitted to the ECJ, but the decision on whether to do that lies in principle with the domestic court. Even the highest courts have wide discretion under EU law to refuse to submit a preliminary ruling request by establishing that a particular EU law matter has already been clarified by the ECJ previously (acte éclairé), or that the correct interpretation of the EU law in question is obvious (acte clair). There is therefore no right under EU law for the parties to the dispute to receive a preliminary ruling from the ECJ. However, if the domestic courts refuse to submit a request for a preliminary ruling without giving appropriate arguments for that, the European Convention on Human Rights can be invoked, in particular its Articles 6 and 13, as has been recently confirmed by the Dhahbi judgment of the European Court of Human Rights.

Conclusion

Bringing the issue of EU-born stateless children into the scope of EU law would be a landmark moment for tackling statelessness in the European Union. Establishing the ECJ’s jurisdiction on this issue would certainly speed up many of the already existing positive processes towards a better implementation of international standards on statelessness in the EU Member States. In addition, this would raise awareness of statelessness as an EU-level problem among the European policy makers, and perhaps encourage future structural EU-level solutions. Moreover, enforcing standards on statelessness within the EU would give more legitimacy to the very commendable efforts of the EU to address statelessness through its foreign policy.

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