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The need to eradicate statelessness of children

Report | Doc. 13985 | 16 February 2016

Committee
Committee on Migration, Refugees and Displaced Persons
Rapporteur :
Mr Manlio DI STEFANO, Italy, NR
Origin
Reference to committee: Doc. 13710, Reference 4123 of 20 April 2015. 2016 - March Standing Committee

Summary:

There are more than ten million stateless people in the world today and every year up to 70 000 children are born into statelessness. There are over 600 000 stateless people in Europe alone. The majority of Europe’s stateless were born and live in Europe; many of them would not be stateless today if all European countries had comprehensive safeguards against childhood statelessness as required by international law. The current refugee crisis, which has seen hundreds of thousands of Syrian and other refugees flee their countries in the hope of a more secure life in Europe, brings a new statelessness challenge which, if not addressed comprehensively, will see a further increase in Europe’s stateless population.

This report urges member States to work together to promote the prevention and resolution of statelessness and to provide comprehensive protection to ensure that refugee, asylum-seeking and migrant children and the children of refugees, asylum seekers and migrants born on their territories are protected from childhood statelessness, taking into account the best interests of the child and the need to prevent exclusion and discrimination in adulthood.

A Draft resolutionNote

1 The Parliamentary Assembly refers to the Council of Europe’s conventional acquis related to statelessness, in particular its 2006 Convention on Avoidance of Statelessness in relation to State Succession (CETS No. 200), which builds on the 1997 European Convention on Nationality (ETS No. 166). It also recalls that Article 8 of the European Convention on Human Rights (ETS No. 5) (right to respect for private and family life) has been interpreted to include respect for a nationality in the context of the denial of citizenship or uncertainty of recognition of citizenship.
2 The Assembly recalls the relevant United Nations instruments, namely the 1989 Convention on the Rights of the Child, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness which has been ratified by 29 Council of Europe member States.
3 Changes in national borders and displacement of populations following international crises and conflicts are major causes of statelessness. The highest levels of statelessness in Europe’s recent history arose as a consequence of the Second World War, then in the aftermath of the break-up of the Soviet Union and Yugoslavia. The current migration crisis, which has seen hundreds of thousands of Syrian and other refugees flee their countries in the hope of a more secure life in Europe, brings a new statelessness challenge which, if not addressed comprehensively, will see a further increase in Europe’s stateless population.
4 There are more than ten million stateless people in the world today and every year up to 70 000 children are born into statelessness. There are over 600 000 stateless people in Europe alone. Some migrants and asylum seekers in Europe are already stateless on arrival, in which case the situation of their children born in exile needs to be provided for all the more urgently. However, the majority of Europe’s stateless were born and live in Europe; many of them would not be stateless today if all European countries had comprehensive safeguards against childhood statelessness as required by international law.
5 The failure to ensure that every child enjoys the right to a nationality has serious consequences on children, their families and society as a whole. Statelessness brings problems of discrimination and access to housing, education, health care and employment. It exacerbates the problems faced by people who are already likely to be socially vulnerable. Addressing the question of statelessness at the earliest age should prevent the persistence of such problems and situations of discrimination into adulthood. Moreover, children who have the right to become a citizen can truly belong in and contribute to society.
6 The extensive international legal and regulatory framework related to statelessness and every child’s right to a nationality provides a comprehensive safeguard against childhood statelessness. However, despite this solid international legal framework, the national legislation of several European States contains provisions which raise serious concern and may cause or prolong situations of statelessness.
7 The relevant legislation in Cyprus, Norway, Romania and Switzerland contain insufficient or no safeguards against childhood statelessness, in breach of regional and international obligations.
8 Azerbaijan, Croatia, the Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland and Slovenia have conditional safeguards which do not provide full protection against children’s statelessness, as they only function if the child’s parents are stateless or of unknown citizenship.
9 In some Council of Europe member States, parents cannot pass on their nationality to their children and in others the safeguard is dependent on residence requirements which do not comply with international norms.
10 In the light of the above, the Assembly urges all Council of Europe member States to take measures to resolve statelessness through law and policy reform and by the effective implementation of existing mechanisms.
11 To this end, the Assembly asks member States to take the following steps to eradicate childhood statelessness:
11.1 with respect to the implementation of international conventions on statelessness, the Assembly:
11.1.1 calls on Andorra, Armenia, Azerbaijan, Belgium, Cyprus, Estonia, Georgia, Ireland, Liechtenstein, Lithuania, Monaco, San Marino, Serbia, Slovenia, Spain, Switzerland, Turkey and the United Kingdom to sign and ratify, and calls on Croatia, France, Greece, Italy, Latvia, Luxembourg, Malta, Poland and the Russian Federation to ratify the Council of Europe Convention on Nationality;
11.1.2 calls on those States having not yet done so to sign and ratify the Council of Europe Convention on Avoidance of Statelessness in relation to State Succession;
11.1.3 urges those States having not yet done so to sign and ratify the United Nations 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness;
11.2 with respect to national legislation, it calls on them to:
11.2.1 where appropriate, take measures to resolve statelessness through law and policy reform accompanied by implementing provisions and supervisory mechanisms;
11.2.2 review, with a view to amending if appropriate, law and policy frameworks to bring national law into compliance with the above-mentioned international instruments and standards and, in particular, to ensure that national legislation provides for granting nationality to every child born on their territory who would otherwise be stateless;
11.2.3 introduce or upgrade existing statelessness determination procedures in accordance with the guidelines of the Office of the United Nations High Commissioner for Refugees (UNHCR), in order to ensure that all stateless persons in their territories can be identified, protected and ultimately acquire nationality through facilitated naturalisation;
11.2.4 ensure that the birth of every child born in their territory is registered immediately. In particular, States are urged to ensure that children born into vulnerable communities are registered at birth;
11.3 with respect to national policies and practice, it invites them to:
11.3.1 take measures to provide comprehensive protection to ensure that refugee, asylum-seeker and migrant children and the children of refugees, asylum seekers and migrants born on their territories are protected from childhood statelessness, taking into account the best interests of the child and the need to prevent exclusion and discrimination in adulthood;
11.3.2 participate in and support the United Nations Global Action Plan to End Statelessness by 2024 by, inter alia, drafting and implementing national action plans in collaboration with the UNHCR and by financially supporting the Global Action Plan;
11.3.3 work together to promote the prevention and resolution of statelessness, for instance through the use of the United Nations Universal Periodic Review system, by which States may make recommendations to other member States to address situations of statelessness.

B Explanatory memorandum by Mr Di Stefano, rapporteur

1 Introduction

1 The 1954 Convention relating to the Status of Stateless Persons defines a stateless person as someone “who is not considered as a national by any State under the operation of its law”.Note This definition is recognised as customary international law. It has been interpreted by the Office of the United Nations High Commissioner for Refugees (UNHCR) as requiring “a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law”.Note Therefore a person may be stateless even if an interpretation of the nationality law of their country of origin shows that they have a right to that nationality.
2 There are more than 10 million stateless people in the world today, and every year, as many as 70 000 children are born into statelessness. There are over 600 000 stateless people in Europe alone. The majority of these people have been born in, and lived their entire lives in Europe. Many would not be stateless today if all European countries had comprehensive safeguards against childhood statelessness. There are also some stateless refugees and migrants in EuropeNote and there are serious concerns as to the ability of all children born in exile to refugees who come to Europe – including in growing numbers from Syria – to secure a nationality.
3 It is in this context that in this report I call on European States to take all necessary steps to eradicate statelessness, and in particular childhood statelessness. This report also demonstrates the importance of identifying the stateless persons living in each European State, to ensure their protection until they receive a nationality. The failure to do so is disadvantageous to both the individual and their enjoyment of rights, but also to States themselves. It also further obstructs States’ ability to avoid childhood statelessness from arising within their territory.

2 Situation of stateless persons in the Council of Europe member States

2.1 Background

4 The history of statelessness in Europe is well documented. The 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons were born out of the en masse forced displacement and arbitrary deprivation of nationality that took place in the lead up to and during the Second World War. Indeed, all core human rights treaties which protect the right to a nationality are post-war instruments. After the Second World War, the next significant historical event which caused large-scale statelessness in Europe was the end of the Cold War and the break-up of the Soviet Union and Yugoslavia. Despite the promulgation of the Convention on the Avoidance of Statelessness in relation to State Succession to avoid statelessness in this context, the largest stateless populations in Europe today are the legacy of this historical period.
5 In contemporary Europe, the refugee crisis which has seen hundreds of thousands of Syrian and other refugees seek safety and a more secure life in Europe, brings with it a new statelessness challenge, which, if not addressed comprehensively, will see a further increase in Europe’s stateless population, including the children of refugees born in Europe. This is particularly so because Syria and other countries of origin have stateless populations and gender discriminatory nationality laws which deny women the right to confer their nationality on their children.Note
6 Due to a lack of understanding and a lack of political commitment, some European States have been reluctant to take concrete measures to end childhood statelessness. The failure to ensure that every child enjoys the right to a nationality has serious consequences on children, their families and society as a whole.

2.2 Legal and regulatory framework

7 The legal and regulatory framework for Council of Europe member States related to statelessness and every child’s right to a nationality is extensive. Relevant regional and international instruments collectively provide a comprehensive safeguard against childhood statelessness. However, gaps in national laws and policies hinder the implementation of these obligations.
8 Of the Council of Europe instruments, Article 6.2 of the European Convention on Nationality (ETS No. 166) states that “[e]ach State Party shall provide in its internal law for its nationality to be acquired by children born on its territory who do not acquire at birth another nationality”. Also relevant is the Convention on the Avoidance of Statelessness in relation to State Succession. While the European Convention on Human Rights (ETS No. 5) does not explicitly recognise the right to a nationality, Article 8 of the Convention (right to respect for private and family life) has been interpreted to include respect for a nationality in the context of the denial of citizenshipNote or uncertainty of recognition of citizenship.Note The principles of the best interests of the childNote and of non-discrimination,Note as they have been applied by the Court, are also relevant in this regard.Note
9 In addition to the Council of Europe framework, the right to a nationality is protected under various international instruments such as Article 15.1 of the Universal Declaration of Human Rights; Article 7 of the Convention on the Rights of the Child (CRC); Article 1 of the 1961 Convention on the Reduction of Statelessness (“1961 Convention”); Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 24.3 of the International Covenant on Civil and Political Rights; Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women; Article 18 of the Convention on the Rights of Persons with Disabilities; and Article 29 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
10 The most extensive protection against childhood statelessness can be found in the Convention on the Rights of the Child. Article 7.1 obligates States to register all births immediately and to ensure the child’s “right to acquire a nationality”. Article 7.2 explicitly requires the implementation of measures to avoid statelessness. Furthermore, Article 8 of the convention protects the right of children to preserve their identity, including nationality. These provisions are to be read in light of Articles 2 and 3 which prescribe non-discrimination and the best interests of the child, respectively, as guiding principles for the implementation of all child rights. The Committee on the Rights of the Child has clarified that States are obliged, under the Convention on the Rights of the Child, to grant nationality at birth or as soon as possible after birth to all children born on the territory who would otherwise be stateless, without restriction.Note Article 1.1 of the 1961 Convention also obligates States to “grant its nationality to a person born in its territory who would otherwise be stateless” – a provision that encompasses all stateless children and may not be made subject to lawful residence requirements imposed on either the child or the parents.
11 The Convention on the Rights of the Child and the European Convention on Human Rights are universally ratified by the Council of Europe member States. Twenty-nine States are Party to the 1961 Convention and 20 to the European Convention on Nationality (a total of 31 European States are thereby party to either or both).Note Therefore it is evident that all European States have a strong obligation to respect every child’s right to a nationality, and to eradicate childhood statelessness.
12 However, the nationality laws of several European countries contain provisions that cause or prolong situations of statelessness. The laws of four countries (Cyprus, Norway, Romania and Switzerland) contain no or only minimal safeguards against childhood statelessness, and therefore are most in breach of regional and international obligations. Other countries have conditional safeguards that do not comprehensively protect against childhood statelessness. For example, in 11 countries, the safeguard kicks in only if the child’s parents themselves are stateless or of unknown citizenship.Note However, there are circumstances in which parents who have a nationality cannot pass on their nationality to their children.Note In 14 countries, the safeguard is dependent on residence requirements that are not in accordance with international norms.Note
13 In this context, it is significant that European States are taking new initiatives to address childhood statelessness. The increased engagement of members of the Parliamentary Assembly, including through the motion for a resolution of 5 February 2015 on the need to eradicate statelessness of children, is an important step. The use of the Universal Periodic Review by European States to make recommendations to their fellow States to address statelessness is also promising. For example, the Netherlands, Norway and Russia have all made relevant recommendations to Latvia; Austria has made recommendations to Russia; and Bosnia and Herzegovina and Russia have made recommendations to Estonia.
14 Positive developments can also be found at national level. For instance, Estonia – a country where several hundred children were still being born into statelessness each year – has passed important legal amendments which entered into force on 1 January 2016. Children who are born today in Estonia acquire Estonian citizenship by naturalisation automatically and as of birth, if their parent(s) are stateless and have been legally residing in Estonia for at least five years at the time of the birth of the child. Moreover, Armenia amended its law in May 2015 to introduce a comprehensive safeguard granting nationality to all children born on the territory if they would otherwise be stateless.

3 The importance for children of having the right to a nationality

3.1 Benefits of ensuring the right to nationality for children

15 All children, including stateless children, are entitled to the protection of regional and international human rights law. However, the right to a nationality is an “enabling right” and without a nationality, accessing all types of other rights becomes more difficult. Children who are stateless face challenges in all areas of life, including: entering or completing schooling; accessing health-care services; obtaining a birth certificate; receiving social security; obtaining a passport or any form of identity documentation; travelling abroad and exercising their right of free movement.Note They can be vulnerable to arbitrary and lengthy detention, and in extreme cases, they can be victims of trafficking and even targets for persecution.Note
16 This is why Nils Muižnieks, the Council of Europe Commissioner for Human Rights, has stated that: “It is in the child’s best interest to have a nationality”.Note In its recent report on the need to end childhood statelessness, the UNHCR has illustrated how stateless children and young people encounter challenges or problems accessing education and health care, and finding work.Note Stateless children often face uncertainty, poverty, marginalisation and discrimination; they are robbed of their childhoods.Note Because of their lack of a nationality, stateless children are disadvantaged, vulnerable and unable to develop themselves fully;Note with serious socio-economic consequences.Note
17 Through ensuring the child’s right to a nationality, the first, important step is taken to prevent such negative consequences. Children who have a nationality are more likely to be able to grow up in dignity and develop to their full potential with an identity of their own. Moreover, children who have the right to become a citizen can truly belong in and contribute to society.
18 The advantages of ending childhood statelessness also extend to States. Eradicating statelessness and exclusion is necessary to create more cohesive, secure and productive communities. Giving every child the opportunity to reach their full potential is ensuring that each State reaches its full potential.
19 Taken together, regional and international legal norms, the serious impact of statelessness on the lives of children and the advantages to children, families, communities and States in ensuring all children have a nationality are convincing reasons for all States to take comprehensive measures to eradicate childhood statelessness.

3.2 Measures to eradicate statelessness of children

3.2.1 Legislative and regulatory measures

20 The recent Mennesson caseNote brought to light one of the challenging contexts in terms of nationality and statelessness: surrogacy.Note The applicants in this case were a French couple (commissioning parents) and their two children born through a surrogacy arrangement in the United States. They complained to the European Court of Human Rights that Article 8 of the European Convention on Human Rights had been violated because the French authorities refused to recognise their family ties, to the detriment of the best interests of the children. Given that French law outlaws surrogacy as a method of assisted reproduction, the government emphasised that allowing the registration could lead to inconsistent application of this prohibition.Note The Court accepted that it is legitimate for France to discourage persons from prohibited forms of assisted reproduction, but held that the effects of the non-recognition in French law of the legal parent-child relationship impacted not only the (intended) parents, but also the children, “whose right to respect for their private life – which implies that everyone must be able to establish the substance of his or her identity, including the legal parent-child relationship – is substantially affected. Accordingly, a serious question arises as to the compatibility of that situation with the child’s best interests, respect for which must guide any decision in their regard”.Note Thus, the Court concluded that the two children’s right to respect for private life under Article 8 of the Convention had been violated.
21 While surrogacy is a niche issue, the Mennesson case has a much wider relevance. It underscores the primacy of the principle of the best interests of the child, even in the face of matters of national law and policy. Given that statelessness is never in the child’s best interest,Note the implications of the Mennesson case are that all States would do well to revise their legislative and regulatory frameworks to comprehensively protect against childhood statelessness. As stated above, such steps are also in keeping with obligations under the Convention on the Rights of the Child, the European Convention on Nationality and the 1961 Convention on the Reduction of Statelessness.
22 Eradication of childhood statelessness is achieved by ensuring that a) no child is born stateless and b) all children who are stateless get a nationality. In order to ensure a sustainable and comprehensive solution, steps should also be taken to identify stateless adults and grant them nationality.
23 In terms of the former requirement, nationality should be granted to all children born on the territory of the State and who would otherwise be stateless. The Committee on the Rights of the Child has made as many as 27 recommendations to States in this regard.Note In order to fulfil this obligation, nationality should be granted “regardless of the parents’ legal (residence) status; regardless of the parents’ or legal guardians’ sex, race, religion or ethnicity, social origin or status; regardless of the parents’ (past) opinions or activities; and regardless of the child being part of a(n) (ethnic) minority group, including children born to (former) refugees”.Note This safeguard should be effectively implemented by all European States in order to end children being born into statelessness in Europe. This in turn requires States to determine whether the child has acquired another nationality at birth or would in fact be stateless.Note
24 In terms of the latter requirement, it is important that States retroactively implement all laws which grant nationality to children born on the territory and who would otherwise be stateless. The amendment to Estonia’s law highlighted above partially fulfils this requirement by being retroactively implementable to all children under the age of 15. However, this law will not benefit stateless children and adults over the age of 15. Additionally, States should also implement measures to facilitate the naturalisation of stateless children who were not born in the territory, but are resident in it. This is particularly important to ensure the full integration of stateless refugee and migrant children. Consequently, it is important that States establish and implement properly functioning statelessness determination procedures to identify and protect stateless migrant children on their territory, and facilitate their naturalisation in line with the relevant legal standards.Note By establishing such processes, States would also facilitate the identification and naturalisation of stateless adults.
25 Another worrying practice in Europe which can be addressed through legislative and regulatory measures, is ensuring that children are not registered as having “unknown nationality”. Some, but not all children registered as such, are likely to be stateless. This is quite a widespread phenomenon in Europe with implications as damaging as childhood statelessness.Note Identifying accurately whether the child has a nationality, and if so, what that nationality is, or whether the child is stateless, is a first essential step to protection and the reduction of statelessness. The implementation of effective statelessness determination procedures will drastically reduce the number of children who are registered as having an “unknown nationality”.
26 A further area in which legislative and regulatory measures is required is in resolving existing situations of statelessness. The largest cause of childhood statelessness in Europe and worldwide is inheriting this status from parents.Note States, particularly those with large resident stateless populations, must take all steps necessary to resolve existing situations of statelessness.
27 Universal and timely birth registration can also help reduce childhood statelessness. Whilst the acquisition of nationality and birth registration are usually two separate processes, birth registration is critically important for ensuring the right to a nationality for every child.Note Europe has very high birth registration rates, but certain groups of vulnerable children remain systematically unregistered.Note Hence, States are urged to ensure birth registration for every child. Any obstacles to registration must be removed in order to guarantee that all children can equally access birth registration.Note

3.2.2 Procedural measures

28 In order to act on the above, States may find it necessary to reform national laws, policies and regulations. In addition, in order to make access to nationality a reality for all children, States are likely to need to take measures of a more procedural nature to provide support, for instance by making information and (legal) advice available to children and their families. Similarly, the right to review and appeal administrative and judicial decisions and the right to interpretation and translation if necessary must be afforded to children and their families. With regard to statelessness determination procedures, States should ensure that their frameworks comply with UNHCR Guidance.Note

4 Conclusions and recommendations

29 States are urged to take account of the particular vulnerabilities of stateless children and to take the following steps to eradicate childhood statelessness in Europe:
  • all States which have not yet done so are urged to become parties to the European Convention on Nationality, the Convention on the Avoidance of Statelessness in relation to State Succession, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness;
  • all States are urged to participate in and support the United Nations Global Action Plan to End Statelessness by 2024 by, inter alia, drafting and implementing national action plans in collaboration with the UNHCR and by financially supporting the Global Action Plan;
  • all States which do not have adequate safeguards to protect against childhood statelessness are urged to review and amend their law and policy frameworks to bring national law into compliance with the Convention on the Rights of the Child, the European Convention on Nationality and the 1961 Convention on the Reduction of Statelessness;
  • all States with existing stateless populations are urged to take measures to resolve statelessness, through law and policy reform and implementing steps;
  • all States which do not have statelessness determination procedures which comply with UNHCR guidelines are urged to introduce new procedures or upgrade existing ones, to ensure that all stateless persons in their territories can be identified, protected and ultimately acquire nationality through facilitated naturalisation;
  • all States are urged to take special measures to ensure that refugee and migrant children and the children of refugees and migrants born on their territories are protected from childhood statelessness;
  • all States are urged to ensure that the birth of every child born in their territory is registered immediately. In particular, States are urged to ensure that children born into vulnerable communities are registered at birth.
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