In an important step towards ending childhood statelessness, the new EU Strategy on the Rights of the Child recognises the impact of statelessness on children’s rights and calls on Member States to implement actions to address statelessness.
On 24 March, the European Commission published its EU Strategy on the Rights of the Child, and an accompanying proposal for a Child Rights Guarantee. The strategy aims to provide a comprehensive framework for mainstreaming the rights of children and their best interests across all relevant new and existing EU legislative, policy and funding instruments. It proposes a series of targeted actions across six thematic areas, defining the EU’s priorities for action over the coming years, and states that its overarching ambition is “to build the best possible life for children in the European Union and across the globe”.
ENS has been closely engaging with the development of the strategy, submitting a position paper to the Commission's public consultation laying out clear and targeted recommendations for action by the European Commission, other EU institutions and EU Member States, to effectively address childhood statelessness. We also supported the inclusion of recommendations in both a European Parliament resolution and the Group of the European People's Party (EPP) position paper on the strategy, with both making explicit calls for the strategy to address childhood statelessness.
The Commission has responded to our calls and taken an important step towards preventing children from being born stateless in the region. The strategy both clearly acknowledges the impact that lacking a nationality can have on children and their fundamental rights and includes a specific action for Member States to address the issue. Whilst this must be celebrated, the strategy misses an opportunity to outline clear action at regional level by the EU and its agencies to support the prevention of childhood statelessness. It also fails to address the need for the introduction and implementation of legal safeguards and child rights-based statelessness determination procedures at national level.
What does the strategy say on childhood statelessness?
The six priority thematic areas in the new strategy are: participation in political and democratic life; socio-economic inclusion, health and education; combating violence against children and ensuring child protection; child friendly justice; digital and information society; and supporting, protecting and empowering children globally. Childhood statelessness is highlighted under the child friendly justice theme, which makes important reference to the impact of statelessness on children, stating that:
“Even today in Europe, there are children who are stateless, either since birth or, often, because of migration. Not having a nationality makes it difficult to access some of the basic services such as healthcare and education and can lead to situation of violence and exploitation.”
To respond to this, Member States are invited to:
“Promote and ensure universal, free and immediate access to birth registration and certification for all children...” and to… “increase capacity of front-line officials to respond to statelessness and nationality-related problems in the context of migration.”
These two specific actions for Member States reflect some of what we proposed in our position paper, and build on our wider calls to Member States to end childhood statelessness. Given the heightened risk of statelessness some children in migration in Europe face, and the importance of birth registration as a preventative measure against statelessness, these recommendations for targeted action by States are key. They provide a basic framework for Member States within the EU to implement their obligations under the UN statelessness conventions and the Convention on the Rights of the Child to uphold the right of every child to access immediate, free birth registration and a nationality.
It is essential that Member States now take concrete action to implement the strategy at national level and make these proposals a reality.
Although the Commission does not set out actions on statelessness at EU level in the new strategy, as we explain in our position paper, we believe that action taken by Member States must be accompanied by regional-level support from the Commission and relevant EU agencies. We call for the allocation of specific funding towards activities to build the capacity of frontline officials to identify, record and respond to statelessness in the migration and asylum context. We also think the EU has a key role to play in monitoring existing practice, facilitating sharing of best practice between Member States, and mainstreaming statelessness in the work of its agencies, including the EU Asylum Agency, Frontex, and the Fundamental Rights Agency. The ongoing negotiations on the EU Pact on Asylum and Migration provide an important opportunity for the EU to further commit to action to uphold the rights of stateless refugees and migrants, including children, and mainstream childhood statelessness across EU migration and asylum law and policy.
Similarly, steps can be taken by the Commission to promote and ensure universal access to birth registration and certification both within the EU and in third countries, including through the implementation of the new EU Roma Strategic framework, and the work of the External Action Service. A further opportunity for the Commission to provide support to Member States to improve access to birth registration, lies in its proposed action within the child rights strategy for “a horizontal legislative initiative to support the mutual recognition of parenthood between Member States”. As highlighted in a case recently heard before the Court of Justice of the European Union, the varying enjoyment of LGBTIQ* rights across Europe means that children of same-sex couples can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk, and impacting on their EU citizenship. The proposed horizontal legislative initiative, also included in the EU’s five-year LGBTIQ Equality Strategy, must therefore continue the EU’s previous work to support Member States to remove barriers to birth registration and ensure the recognition of birth certificates of children born to rainbow families.
A missed opportunity for action on child rights-based SDPs and legal safeguards
Whilst the Commission’s inclusion of targeted action for Member States to prevent childhood statelessness and protect stateless children is certainly to be welcomed, there are several key areas for action that are not addressed in the new strategy. Regional and national level action in these areas will be crucial if we are to reach a future where no child is born stateless in the EU or elsewhere in the world.
Firstly, the introduction, improvement and/or implementation of legal safeguards in nationality laws to prevent childhood statelessness is essential for ensuring all children who would otherwise be stateless are able to fulfil their right to acquire a nationality. Currently, almost half of European countries are not meeting their obligations to ensure all children born on their territory acquire a nationality. Whilst Member States have competence on nationality matters, this competence exists within the limits of international law, including the Convention on the Rights of the Child, which requires all States in Europe to uphold every child’s right to acquire a nationality, and to act in the best interest of the child. We believe there is a crucial role for the European Commission to promote and support Member States to introduce and implement legal safeguards to prevent childhood statelessness, including through the sharing of information and best practice.
A second area requiring action that is absent from the new strategy, is the introduction of child rights-based statelessness determination procedures (SDPs) to enable States to meet their international obligations towards stateless children in migration, ensure protection in line with their best interests, and the realisation of their right to acquire a nationality. Only a handful of European countries have dedicated SDPs in place, and those that exist appear to be applied to children without adaptation from the general procedure. Concerted action is, therefore, necessary at national level to either introduce SDPs where they do not exist, or improve them and ensure they are adapted in line with UNHCR guidance when applied to children, in line with their best interests. Again, the EU has an important role to play here – as set out in the 2015 Council Conclusions on Statelessness - to support and resource such activities at national level, through capacity-building, information-sharing, and facilitating the exchange of good practices on how child rights-based procedures should operate.
Working together to implement and build on the new strategy
The new strategy states that “every child in Europe and across the world should enjoy the same rights and be able to live free of discrimination, recrimination or intimidation of any kind”. It recognises the “specific needs of certain groups of children”, including those “facing intersecting forms of discrimination”. By acknowledging the impact of statelessness on children’s rights and calling for Member States to take action to better protect stateless children and prevent future cases arising, the European Commission has taken an important step on the path towards ensuring that children are no longer discriminated against or prevented from accessing their rights due to lack of a nationality.
Whilst the strategy omits some fundamental areas for action to end childhood statelessness, including at a regional level, opportunities to address these gaps lie in the strategy’s implementation, and in the mainstreaming of child rights in other law and policy areas, including asylum and migration, Roma equality and inclusion, and LGBTIQ* equality. For its part, ENS will continue to support and coordinate regional and national activities towards addressing childhood statelessness over the coming years and looks forward to maintaining its collaboration with the European Commission, the European Parliament, the Council, and other actors, in upholding every child’s right to a nationality in regional efforts to protect and promote children’s rights.