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Nils Muižnieks, Council of Europe Commissioner for Human
Rights, explains here just how straightforward it is to end
statelessness for children born on European soil.81 Without
needing to entirely overhaul the way in which European states
regulate access to nationality, children could be protected from
statelessness by a simple fall-back provision based on jus soli
(place of birth).82 The challenge is that Europe strongly favours
a descent-based approach to the conferral of nationality to
children at birth – i.e. in general, the jus sanguinis principle holds
sway in the region. While this helps to ensure that “children
born to European parents anywhere in the world are at minimal
risk of statelessness, [it also] fosters the assumption that children
born to non-European nationals in Europe should be citizens of
elsewhere, leaving some of those children at risk of statelessness”.83
As discussed in detail in this section, even where states have
safeguards in place to prevent statelessness among children
born in their territory, these are not always fully inclusive. In
some cases, the too-narrow safeguards evidence a lack of
understanding of when statelessness can arise – reflecting,
indeed, the assumption that a child born to a foreign national will
always be able to inherit that foreign nationality. In other cases,
states impose additional requirements that stem from other, e.g.
public policy concerns, that are infiltrating and impinging on the
question of children’s enjoyment of the right to a nationality.
THE IMPORTANCE OF NATIONALITY LAW
SAFEGUARDS FOR OTHERWISE STATELESS
CHILDREN
The most obvious scenario for which it is vital to have a
provision in place to allow children to acquire nationality by
jus soli, even if that is not the main route under the law, is
where the parents are stateless – relevant in Europe given
the existing scale of the problem of statelessness in the
region. In such cases, sole reliance on jus sanguinis conferral of
nationality would lead to the perpetuation of statelessness to
the next generation and be contrary to the right of every child
to acquire a nationality. Thus, already under the 1930 Hague
Convention on certain questions relating to the conflict of
nationality laws, states were obliged to confer nationality to
children born on the territory of parents having no nationality
or of unknown nationality.84 However, such a safeguard fails to
account for the circumstance where the child’s parent(s) do
hold a nationality themselves, but are unable to pass this on.
This is the case for mothers, for instance, who are nationals
of one of the 27 countries worldwide that do not respect
the right of women to confer nationality to their children on
equal terms with men.85 Children of single mothers from
these countries face the threat of statelessness.86 Under the
nationality law and practice of some countries, where children
born out of wedlock may face difficulties inheriting citizenship
from either their mother or father.87
More generally, it is not uncommon for states to limit, in various
ways, the transmission of nationality jus sanguinis where children
are born outside the country of the parents’ nationality.
Canada, for example, amended its law in 2008 and now only
allows the first generation born to Canadian parents abroad to
acquire Canadian nationality.88 Other countries require additional
conditions to be fulfilled for access to nationality for children
born overseas.89 These may be registration requirements
which are usually relatively straightforward to complete –
except for refugees, who would expose themselves or their
family members in the country of origin to protection risks
by approaching their consulate. Or the law may stipulate that
the child must return and reside in the country of the parents’
nationality in order to acquire citizenship.
THE CHALLENGE OF SAFEGUARDING
THE RIGHT TO NATIONALITY FOR
CHILDREN OF REFUGEES
Children born to refugees, in exile, are particularly
susceptible to problems in securing a nationality.90
Some refugees are stateless prior to their flight – their
statelessness may even be a factor in their displacement,
as a marker of or catalyst for the persecution that they
suffer.91 Statelessness can also follow as a consequence
of displacement, for instance due to laws that provide
for loss of nationality on the basis of long-term residence
abroad, even if no new nationality has been acquired.92
In such cases, refugee parents have no nationality to
transmit, such that their children are reliant on the
country of birth to acquire a nationality at birth. It is
therefore particularly important that refugee receiving
states have safeguards in place to ensure that stateless
children born on their territory acquire a nationality.
Yet, the vulnerability of children of refugees to
statelessness is not restricted to children of stateless
refugees. Many refugees in Europe come from countries
with problematic nationality legislation. Syria, for instance,
discriminates against women in its nationality law and does
not allow Syrian citizen mothers to confer nationality to
their children. This puts a child born to a Syrian refugee
mother and unknown, absent or deceased father at risk
of statelessness – even though the mother does hold a
nationality herself. In other cases, additional requirements
must be met by a child born outside the parents’ country
of nationality in order to inherit that nationality. Colombia,
for example, makes acquisition of nationality by children
born abroad conditional on the completion of a consular
registration process, which refugee parents may not be
in a position to fulfil due to the protection risks that this
can entail. Other states, such as Cuba, stipulate conditions
relating to residence in the country by the child before
nationality is acquired.93 Furthermore, children born during
the passage to the country of refuge and unaccompanied
minors can also face the risk of statelessness.94 And
refugees are among the groups which have been found
to face difficulties in accessing birth registration for their
children, which can further complicate the task of accessing
a nationality for such children.95
On the Southern perimeter of Europe, another challenge
has emerged in relation to refugees arriving by sea. With
conflicts flaring across the Middle East, parts of North
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