INTRODUCTION1 Under international law, the enjoyment of human rights is, in most cases, not attached to holding a specific nationality. Despite this gradual ‘denationalisation’ of human rights, nationality still appears to be crucial for the actual enjoyment of human rights and the access to protection mechanisms in case of rights violations. Not having a nationality – being stateless – may easily push a person into the margins of society, exposing her/him to poverty, exclusion, and all sorts of human rights violations. And even in the absence of such grave consequences, statelessness may still cause numerous difficulties at all spheres of everyday life. The definition of a stateless person in international law reads as ‘a person who is not considered as a national by any State under the operation of its law’.2 There is broad consensus that statelessness must be avoided, a principle confirmed by a large set of international treaties and recommendations.3 Safeguards are particularly strong in case of new-born children,4 yet they are far from fulfilling their objective in day-to-day practice. UNHCR estimates that over 420 000 stateless persons live in the European Union, and the actual number may be even higher, due to frequent underreporting and methodological difficulties. A large proportion of these people are children and/or were born in an EU Member State. With the increase in persons coming to Europe to seek international protection, this number may be on the rise in forthcoming years. Refugee children born in exile are particularly exposed to the risk of statelessness. While most of them, in principle, inherit their parents’ nationality, many of them do not, for example due to sex-based discrimination in the nationality law of the parents’ country of origin. Several refugee children automatically acquire their parents’ nationality at birth, but this nationality will often only exist in theory, as parents are prevented from registering their child with authorities of the country of origin. Ensuring that refugee children born in exile in the EU acquire a ‘real’ nationality within a reasonable time is a demanding endeavour. Difficulties are multiplied by the lack of clear guidance (or at least a general agreement on the recommended course of action in these cases), by diverging birth registration practices and by the general lack of awareness about this issue throughout EU Member States. As a consequence, thousands of refugee children ‘fall through the cracks’ in the EU and are condemned to statelessness or to live being registered with ‘unknown’ or a purely fictitious nationality, despite the fact that several EU Member States have included safeguards in their domestic legislation to avoid such situations.5 This is a serious human rights violation that needs to be addressed in order to comply with States’ international obligations, to respect children’s best interest and to contribute to meaningful refugee integration. The EU Charter of Fundamental Rights provides an innovative, yet unused tool to address this complex challenge. This note aims to help human rights advocates, policy-makers and lawyers in this endeavour. The leaflet starts by briefly presenting the relevant standards under international and European law. This is followed by a list of particular challenges that are specific to the case of refugee children born in exile. Finally, the paper concludes with concrete guidance on how to use the Charter in order to advocate for better mechanisms in the EU for the prevention of statelessness among refugee children. I. INTERNATIONAL LAW EVERY CHILD’S RIGHT TO ACQUIRE A NATIONALITY Despite its great importance, nationality has no universally accepted, clear definition in international law, and approaches to this concept diverge across the globe (as a result of cultural, historical, legal and political differences). One of the most frequently quoted judicial definitions of nationality was provided by the International Court of Justice in its 1955 Nottebohm judgment, according to which nationality ‘is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, 1 2 3 4 5 Written by Gábor Gyulai, Refugee Programme director at the Hungarian Helsinki Committee (www.helsinki.hu) and president of the European Network on Statelessness (www.statelessness.eu). 1954 Convention relating to the Status of Stateless Persons, Article 1 (1). See for example: 1961 Convention on the Reduction of Statelessness; 1997 European Convention on Nationality, Articles 6 (1) (b), 6 (2) and 7 (3); 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession. See later in this paper. See European Network on Statelessness, Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices, April 2014, available here http://bit.ly/2lRGBRF 2