Landmark judgment from Spain: court grants Spanish nationality to a stateless child born en route (a case of “invisible children”)

Invisible Children

Article 7(1) of the UN Convention on the Rights of the Child (“CRC”) declares the right of every child to be registered after birth and to acquire a nationality. These rights are necessary foundations for every child to be able to prove their legal identity, and are essential requirements for the exercise of other fundamental rights, such as access to education or to the public health services. For that reason, the right to a nationality and to birth registration is key to enable access to other fundamental rights.

There are, however, children who are “invisible”, as they lack a birth certificate and therefore face significant challenges  in their day to day life, including in accessing healthcare, education, and a nationality. Many of these children are born in the course of their mothers’ journey to Europe as migrants or refugees. The birth may have occurred in a country where the mother was transiting through, that is neither the mother’s country of origin  nor the country of final destination and residence (in this context often Europe). The birth may have occurred in special circumstances that prevent the mother from registering the child before any authority or acquiring proof of birth (e.g. because the mother was travelling, or feared approaching the authorities to ensure their safety or prevent return). The mother may then enter Europe in search for safety, protection, or seeking to regularise their stay, but often without success. This predicament causes these children to be denied the "right to have rights", and are condemned to statelessness.

In May 2022, Guipuzcoa’s Court of Appeal (Audiencia Provincial de Guipúzcoa) issued an unprecedented judgment [no. 341/2022] in the context of legal proceedings for violation of the fundamental rights of a stateless child. This Judgment upholds a previous judgment from a first instance court, and its factual and legal foundations are analysed below.

The facts of the case

The child was born in Morocco in a private house, during her mother’s journey to Europe, in circumstances that prevented her from having any proof of birth, and the mother could not register her daughter in the consular authorities of her country of origin (Cameroon). The mother and her baby arrived in Spain by boat, irregularly. They settled in Spain, which has become their country of residence. The place and specific circumstances of the birth cannot be proven. The first known place where the child has stayed is Spain. There is no document that officially demonstrates that the child has been elsewhere before.

The above prevented the child from being recognised as a national by any of the countries with which she has a connection (the country of her mother (Cameroon), the country of her birth (Morocco) or her country of residence (Spain). Therefore, the child is stateless and both her statelessness and her lack of identification documents prevents her from exercising her fundamental rights.

The court’s judgment

Spain has positive safeguards to prevent statelessness among children born in Spain. Spanish authorities have developed case law that recognises children as Spanish when they are born in Spain and do not “automatically” acquire their parents’ nationality/nationalities because certain bureaucratic procedures have to be followed after their birth.

The judgment is based on the fundamental fact that the child is stateless because no State recognises her as a national of their country "by birth".  This is in line with Article 1(1) of the Convention relating to the Status of Stateless Persons, as interpreted by UNHCR and leading experts, which defines as stateless a person who is not considered as a national of any State "by application" nor "under the operation" of its laws. Thus, what is relevant is how each State applies its legislation in practice and in any particular case.In the case at hand, according to Cameroonian law the child should be considered as Cameroonian by descent (ius sanguinis). However, that recognition is not automatic. As the judgment recognises, the child cannot acquire Cameroonian nationality automatically and "by birth" because additional bureaucratic procedures have to be followed after her birth for her to acquire nationality. The mother applied to the Cameroonian consulate in Spain for the recognition of her daughter’s Cameroonian nationality, but in the response she was referred to the local authorities in Cameroon.

These requirements are impossible to fulfil for many reasons, including the fact that she cannot travel to Cameroon because she has no identification documents, passport or travel documents of any kind. The judgment concluded that “a genuine effort has been made by the [mother] to remove the obstacles in order to seek recognition of the child's Cameroonian nationality."

On the other hand, the mother requested the Moroccan authorities to register the child’s birth and recognise her as a Moroccan national, but the Moroccan State ignored this request. Referring to UNHCR Spain’s position on this, the judgment concluded that the child is stateless by birth as her nationality is not recognised either by the State of origin of the mother, nor by the State of the country of birth, "under the operation" of their respective legislations.

The legal principles

The judgment relies on Article 7 of CRC that declares the right of every child to be registered after birth and to acquire a nationality and the obligation of State Parties (such as Spain) to ensure those rights "in particular where the child would otherwise be stateless". This provision forms part of the Spanish Constitution and is a hermeneutical guideline for the interpretation of fundamental rights.

Secondly, the judgment is based on the principle of respect for the best interests of the child, and highlights that, according to the CRC and Spanish law, the best interests of the child should be a primary consideration in any decision to be taken in relation to those children.

The judgment also explains that the safeguard in Spanish law that grants nationality to children born in Spain to stateless parents or parents unable to pass on their nationality (Article 17(1)(c) of the Spanish Civil Code) is inspired by the principle of favour nationalitis and that it "was introduced … in response to Spain’s obligations under international treaties in order to avoid as far as possible the existence of situations of statelessness."

Considering the above, the judgment confirms the decision of the first instance court to apply this provision to the child’s case insofar as it “constitutes the only mechanism that allows compliance with the legal provisions contained in the international treaties to which Spain is a party, respecting and effectively complying with the best interests of the child.”

Consequently, the judgment recognises that the child holds Spanish nationality “by birth”, and confirms that to conclude otherwise would be to disregard the principle of the best interests of the child, as the child would be left in "the limbo of statelessness" in violation of her "basic and fundamental rights". Indeed, it was proven that the statelessness situation of the child jeopardised her fundamental right to access education and public health services. Intrepreting Spanish law’s on acquisition of nationality widely was justified in order to repair the violation of the fundamental rights of the child.

The judgment is final as the Spanish Government has decided not to appeal the judgement. It is an important step forward in raising awareness to the plight of many children who live in Europe but lack a nationality, and in the fight to eradicate statelessness. It is also relevant that the judgement applies international law and human rights instruments to finding a solution for statelessness, which might also be inspirational for other jurisdictions in similar cases.