Thousands of children associated with alleged ‘foreign fighters’ have been detained in Iraq and Syria since the territorial fall of the Islamic State in Iraq and Syria (ISIS) in 2019. Civil society and international organisations have been working tirelessly to hold States to their international and human rights obligations. In this blog, three leading experts in the fields of child rights, statelessness, nationality law, and human rights reflect on some of the issues that emerged from their analysis of the situation regarding children associated with French, Dutch and British nationals or those deprived of such nationalities.
The experts conducted research as part of an ESRC-funded Knowledge Exchange partnership led by Dr Rachel Pougnet at the University of Bristol, together with ENS. The research focused on the laws, policies, and practices of the Netherlands, France, and the UK, and aimed to better understand the risks of statelessness faced by some children associated with alleged ‘foreign fighters’ in Iraq and Syria. René DeGroot brings our attention to the difficulty of establishing the nationality of Dutch children who were born in Syria and Iraq from mixed marriages and who lack civil documentation. Philomène Franssen presents a concrete example of how French authorities have reportedly established French nationality in the absence of civil documentation and the possibility of DNA tests. As she shows, reliance on a wide range of evidence in these cases to establish nationality can help to prevent statelessness. Finally, Alison Harvey examines the potential impact of the UK’s deprivation of nationality rules and practices on the nationality of some children born in the camps.
The Netherlands: Mixed marriages and an international private law jigsaw
Children born in Iraq or Syria to a Dutch father and a mother of another nationality can face considerable challenges to establish their Dutch nationality. This is due to discriminatory nationality laws, as well as the complexity of rules of international private law that determine which law and jurisdiction should apply. This is especially the case for a child born to a Dutch father and a Syrian or Iraqi mother. Gender discrimination in the laws of Syria and Iraq do not grant women equal rights as men to confer their nationality to their children. To confer Dutch nationality automatically, a Dutch father must be legally married to the foreign mother. Parents married in Iraq or Syria may face heightened difficulties in proving the legality of their marriage where marriages have been conducted under the authority of non-State actors and/or when marriages have been conducted religiously. Dutch legislation recognises religious marriages if these are legally valid in the country where they were celebrated (Article 10:31 Burgerlijk Wetboek). Yet, Article 10:32 of the Dutch Civil code sets limits to this recognition, such as in instances of polygamy or child marriages.
It is possible to create a father-child legal relationship through the procedure of ‘recognition’ in the Netherlands, but in some cases such procedure would have to be initiated at the registry in the Netherlands (for example for children of a Dutch father and Syrian or Iraqi mother). If this is not possible, the only option left for the child is a judicial establishment of paternity in the Netherlands. In cases where both parents do not share a common nationality nor habitual residence, the court will have to apply the law of the place of habitual residence of the child (see Article 10:97 Burgerlijk Wetboek). If the child has habitual residence in Iraq or Syria, the applicable legislations do not provide for a judicial establishment of paternity. What this means is that the court will have to conclude that the request is not admissible, and the child will be left without Dutch nationality. Since 2018, however, the courts recognise that a strict application of Article 10:97 is problematic because it may leave a child stateless. In this specific case, the Court of The Hague accepted its jurisdiction and applied Dutch law to establish paternity. This precedent should be followed in all cases of children born abroad if the parentage has to be established in order to secure the child access to Dutch nationality.
This example demonstrates how complex rules of international private law and discriminatory legislation may render children born in Syria or Iraq of Dutch fathers at serious risk of statelessness. A more flexible approach to the rules is required in order to prevent children from becoming (or remaining) stateless.
France: a flexible approach to establishing nationality
France’s approach to the repatriation of children illustrates why flexibility is so important in establishing nationality.
Research conducted for this project highlighted that the strict ‘case by case’ approach adopted by the French Government to the repatriation of an estimated 300 children is not underpinned by any attempt of the authorities to deny their French nationality. French authorities reportedly appear willing to rely on a wide range of evidence to establish the parentage and French nationality of these children. This generally includes photos, messages, and emails sent to relatives in France, who are in regular contact with French intelligence services. Evidence used also includes oral testimonies from mothers, caregivers or other women detained in the camps, collected by officials and intelligence services on the ground. DNA tests are then undertaken upon return of the children in France in order to fully corroborate evidence submitted. Given the complex situation of these children, many of whom hold birth certificates issued by non-State actors that are typically not recognised by UN member states, reliance on such evidence to establish parentage and nationality is critical to both preventing statelessness and facilitating repatriation.
In February 2019, one such case was widely reported in the media. It concerned three children aged five, three and one, who were born to a French mother and a German father. While the eldest was born in Germany, the two younger children were born in Syria, in ISIS controlled territory. Their mother allegedly died in late 2018, while their German father was arrested and imprisoned by the Syrian Democratic Forces in January 2019. Their French grandparents initiated a procedure to request their repatriation to France in early 2019. In this case, DNA testing from the deceased mother and imprisoned father proved impossible. But the French authorities’ reliance on a wide range of information to confirm the children’s connection to their deceased mother allowed to secure their repatriation in 2019. DNA tests were then carried out in France upon the children’s return in order to fully assert their biological relation with their grandparents.
Their situation highlights the critical importance of the consideration by authorities of all available information at their disposal in order to establish parentage and the nationality of the children. This case also points to the need to recognise documents issued by non-State actors in order to establish parentage and secure a child’s right to French nationality. The information contained in these documents, such as a child’s place of birth, are critical in the absence of any other (recognised) civil documentation.
Moving away from State action to establish nationality, we now briefly turn to deprivation of nationality in the UK and what risks of statelessness this practice poses to children in Syria and Iraq.
The UK: Derivative deprivation of nationality
UK practice is to strip persons of their British citizenship while they are outside the UK, with the consequence that there may be British citizen children in camps in Northeast Syria whose parent or parents are no longer British citizens (see for example  EWHC 2179 ).
If a child is born abroad after their parent has been deprived of British citizenship, the child will not be born British. Some of these children will be born stateless. If the child is born before the deprivation, the deprivation should not affect their British citizenship save in cases where a grant of naturalisation/registration to a parent not born British is found to be a nullity.
The burden of proving British citizenship lies upon the person who says that they are British. A child without documents, whose British parent is not available for a DNA test, may struggle to discharge the burden, although the law does not bar alternative means of proof, such as testimony.
There are instances of the UK Government repatriating British unaccompanied minors and orphans (see, for example, Re Orphans from Syria  EWHC 3202 where a relative applied to the court for the children’s repatriation which was ultimately organised by the Foreign and Commonwealth Office). By contrast, the UK Government has described the position of minors living in camps with their parents as ‘a very difficult area indeed’.
It can be argued that it is in the best interests of children to leave the Syrian camps even at the expense of separation from a parent. It can also be argued that it is in the best interests of the child not to be separated from a parent. If parent and child have a safe third country to which they can go, the case for a return to the UK becomes less compelling, albeit that it may be very compelling indeed. But if they do not have the option of a third country, then the way of squaring the circle is to admit both the parent (no longer a British Citizen and therefore requiring an immigration status) and child to the UK.
These issues are live in the case of ‘C11’, who only discovered her deprivation of citizenship some time after the deprivation took place. A bomb blast had caused shrapnel to be lodged her neck, causing cognitive difficulties. She has a four year-old British citizen son, born outside the UK. The Secretary of State argues that C11 has Pakistani nationality and that there is therefore no risk of statelessness and no bar to depriving her of her nationality. C11 is pleading the best interests of her child in the case against her deprivation of citizenship. The case is due to be heard by the Special Immigration Appeals Commission in March 2022.
For children associated with alleged ‘foreign fighters’, statelessness heightens these children’s already precarious circumstances and brings further issues of access to education and healthcare, alongside discrimination. Risks of statelessness are exacerbated by the fact that children’s rights and their best interests are not adequately considered in States’ policies and practices in relation to children associated with alleged ‘foreign fighters’. More research needs to be done, however, such as to identify good State practices in relation to these children. For a detailed breakdown of policy recommendations informed by this research, please see the University of Bristol – ENS Briefing published today.