ENSURING THE RIGHT TO A NATIONALITY FOR CHILDREN IN MIGRATION IN EUROPE 1 11 LACK OF (CHILD RIGHTS-BASED) STATELESSNESS DETERMINATION PROCEDURES (SDPS) HEIGHTENED RISK OF IMMIGRATION DETENTION To be able to provide the protection and rights enshrined in the 1954 Convention relating to the Status of Stateless Persons, State parties need to be able to identify stateless people on their territory.46 UNHCR recommends that this is best fulfilled through a dedicated statelessness determination procedure (SDP),47 which acts as an established formal mechanism to identify stateless people among migrant populations and ensure that the rights they are entitled to are upheld until they acquire a nationality.48 Lack of awareness of and identification of statelessness can expose children in migration to immigration detention. The very nature of statelessness means that a stateless person usually has no country to which they can return. If a child’s statelessness is not identified, and they find themselves with no route to residence in Europe, they can end up subject to repeated, unsuccessful removal attempts. In many countries, this could mean enduring repeated or prolonged periods of detention, which may be arbitrary. 53 EU guidance on respecting children’s rights in return policies and practices urges States to consider the nationality status or statelessness of a child, as it can affect the prospect of return, rendering it likely impossible if they are stateless. 54 Current practice often means that protection for children in migration (based on their rights as children) ends when they turn 18, particularly where they are residing irregularly, have been granted temporary protection until the age of 18, or still have an application for international protection pending. 55 As well as losing access to various rights, young people in this situation may be subject to detention and attempted removal. In some cases, statelessness or nationality problems are only identified at this stage, where removal is attempted unsuccessfully. Stateless children or children at risk of statelessness should be referred to a statelessness determination procedure so that their statelessness is formally identified and recognised, and they receive full protection and enjoyment of their rights. UNHCR’s Handbook on the Protection of Stateless Persons states the need for additional procedural, substantive and evidentiary safeguards for children in any statelessness determination procedures, including timelines, nondiscrimination with regards to residency status, child-sensitive procedures and shared burden of proof.49 The principle of upholding the best interests of the child must be adhered to in any decision-making relating to their nationality status and stateless protection status. 50 Even if a child is identified as stateless in a migratory context in Europe, officials may not know how to proceed because the systems are not in place to refer people to an SDP. Legal frameworks to implement the rights and protection that stateless people are entitled to under the 1954 Convention do not exist in many countries. This means that if someone is refused refugee or subsidiary protection, they may be left in a legal limbo with no route to protection on the one hand, but no country to return to on the other. Only ten Council of Europe countries (including six EU countries) and Kosovo have SDPs in place, bringing the total to eleven across the region. 51 Where countries do have a statelessness determination procedure, they are applied to children without adaptation from the general procedure, and the burden of proof remains with the child. 52 It is unclear whether unaccompanied children are provided with a guardian or granted legal aid in any of these countries that have a dedicated SDP. Return proceedings can also put children at risk of statelessness, for example, where children are removed without birth certificates or other documents. 56 This may make it difficult for the child to prove their links to a country that may enable them to acquire a nationality. If they are unable to register or acquire nationality in the country of return, they may be treated as non-nationals and excluded from accessing rights and services, such as education and healthcare.