Legal briefing: Statelessness and the right to respect for private and family life October 2024 2.3. Nationality as an element of personal identity: legal parentage, identity documents, birth registration and the right to a nationality The right to a nationality is not explicitly guaranteed by the ECHR or its protocols. However, through its case law, the ECtHR has recognised that, due to its impact on private and family life, nationality is an element of personal identity and as such may fall within the scope of Article 8 ECHR and attract procedural safeguards inherent in that article.107 In the context of denial of nationality, the ECtHR found that this “ may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity”.108 The ECtHR further held that “[w]hilst Article 8 of the Convention does not guarantee a right to acquire a particular nationality, the fact remains that nationality is an element of a person’s identity”.109 This led the ECtHR to develop its jurisprudence and apply this understanding of nationality into several aspects of an individual’s life, thereby building up on the importance of nationality for private and family life. The CJEU has also recognised the importance of nationality, and proof thereof, in the context of children’s access to identity documents, linked to the fundamental importance of family life. Recognition of parent-child relationships For example, the ECtHR has built on the importance of nationality for personal identity in the context of recognition of parent-child relationship. In the case of Mennesson v. France, the Court recognised that children’s uncertainty concerning the possibility of obtaining recognition of a certain nationality is “worrying” and “is liable to have negative repercussions on the definition of their personal identity”.110 This case concerns the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and couples who had had the treatment. In this case, the French authorities maintained that the surrogacy agreements entered into were unlawful. While the Court concluded that there had been no violation of Article 8 ECHR in respect of the applicants’ right to respect for family life, there had been a violation of the applicant children’s right to respect for private life as they had been denied status as children of their parents in the French legal system.111 The restriction under national law had therefore prevented the recognition and establishment of legal relationships between the children and their biological parents and, as a consequence, it had led to uncertainty about recognition of nationality. As a result, the children were prevented from establishing an element of part of their identity.112 The ECtHR further added that the best interests of the child should 107 ECtHR, Mennesson v. France (application no. 65192/11), 26 June 2014, paragraph 97. ECtHR, Genovese v. Malta (application no. 53124/09), 11 October 2011, paragraph 33. 109 ECtHR, Mennesson v. France (application no. 65192/11), 26 June 2014, paragraph 97. 110 ECtHR, Mennesson v. France (application no. 65192/11), 26 June 2014, paragraph 97. 111 ECtHR, Mennesson v. France (application no. 65192/11), 26 June 2014, paragraph 102. 112 ECtHR, Mennesson v. France (application no. 65192/11), 26 June 2014, paragraphs 97, 99. 108 20