legislation against statelessness that are applicable to these cases, either directly at birth or through a nondiscretionary procedure at a later stage. Nevertheless, these safeguards are not sufficiently inclusive in all national frameworks, for example because of limitations based on the parents’ residence status or unduly limited timeframes.59 The legal conclusion in these cases is clear: Without the effective application of proper legal safeguards these refugee children are born and remain stateless. ▼ Under the 1989 Convention on the Rights of the Child (ratified by all EU Member States), the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality and, even in several Member States not parties to the latter two, under domestic legislative rules Member States shall avoid statelessness in these cases by granting their nationality – and thus EU citizenship – to the ‘otherwise stateless’ refugee child at birth or within a reasonable time, giving primary consideration to the child’s best interest. ▼ If a Member State fails to do so: In light of the jurisprudence of the European Court of Human Rights: »» It may violate the child’s right to private life, as protected in the ECHR; »» If the non-application of safeguards is based on nonjustifiable discriminatory grounds (race, religion, origin, residence status, domicile, parents’ marital status, etc.), the Member State may also violate its equal treatment obligation under the ECHR, in conjunction with the right to private life; »» If no proper appeal/judicial review is guaranteed against such treatment, the Member State may also violate its effective remedy obligation under the ECHR, in conjunction with the right to private life. It wrongfully denies EU citizenship to a child who is entitled to acquire it, therefore acting ‘in the scope of EU law’. »» Looking at the parallel provisions in the ECHR and the EU Charter of Fundamental Rights, this may constitute the violation of the right to private life, to equal treatment and effective (in this case judicial) remedy as stipulated in the Charter; »» The Member State can be held responsible for the breach of the right to good administration, as a general principle of EU law; »» The Member State will violate its obligation to give primary consideration to child’s best interest as defined by the Charter. ▼ In order to challenge such practices, the following articles of the Charter apply and can be relied upon: »» Article 7: Right to private life »» Article 21: Non-discrimination »» Article 47: Effective remedy »» Article 24: Children’s right to protection and best interest principle »» Article 41: Right to good administration (indirectly, in order to interpret this general EU law principle) WHERE MORE GUIDANCE IS NEEDED In case of scenario 2 (where the refugee child ipso facto acquires her/his parent’s nationality at birth), the picture is less clear, since the children in question, in principle, are not born stateless. Therefore, the above line of arguments only become applicable if we can conclude that this acquisition of nationality is merely theoretical, and the child is, in reality, not considered as a national by any State under the operation of its law.60 This is a complex analysis, for which currently no authoritative guidance exists. In any event, the application of ‘otherwise stateless’ safeguards should not be automatic in these cases. UNHCR alerts in its guidance that […] where the child of a refugee has acquired the nationality of the State of origin of the parents at birth, it is not desirable for host countries to provide for an automatic grant of nationality under Article 1 (1) of the 1961 Convention at birth, especially in cases where dual nationality is not allowed in one or both States. Rather, States are advised that refugee children and their parents be given the possibility to decide for themselves, whether or not these children acquire the nationality of the State of birth, taking into account any plans they may have for future durable solutions (e.g. voluntary repatriation to 59 60 See more information in: European Network on Statelessness, No Child Should be Stateless, September 2015, http:// www.refworld.org/docid/5729b6d54.html – Note that, interestingly, some states that offer most inclusive safety net against statelessness at birth (such as France, Italy or Spain) have not ratified either of the relevant two conventions. Cf. the definition of a stateless person under the 1954 Convention relating to the Status of Stateless Persons. 13