Legal briefing: Statelessness and the right to respect for private and family life
October 2024
The right to birth registration
In the landmark G.T.B. v. Spain case, the
ECtHR found that the right to respect for
private life includes a right to birth
registration.119 Birth registration is key to
preventing statelessness and ensuring
every child can acquire a nationality,
establishing their legal identity and family
links.120 Yet, some children in Europe still
face the risk of statelessness due to
persisting barriers to birth registration.
The case concerns the consequences of a
nine-year delay in processing a request to
obtain a birth certificate and its impact on
the applicant's private life. The Court
found that “the lack of birth registration
and valid documents can cause significant problems in a person’s daily life”121 and that
Spanish authorities failed to carry out their positive obligations to assist the applicant in
obtaining documentation, resulting in a violation of Article 8 ECHR.122
The Court found a violation of Article 8, in a
groundbreaking case regarding children’s
right to a birth certificate. The applicant was
born in Mexico and repatriated to Spain after
an earthquake. Despite his mother’s
attempts, his birth was not registered upon
arrival in Spain as the necessary
documentation had been destroyed by the
earthquake in Mexico, and he was issued
with an ID card only at 21. The Court found
that, upon becoming aware of the situation,
Spanish authorities were under a positive
obligation to assist the applicant in obtaining
documentation and the failure to do so
resulted in a violation of Article 8 ECHR.
While recognising States’ discretion in determining registration procedures,123 the Court
emphasised the positive obligation of authorities to ensure a fair balance between
competing interests and to facilitate birth registration to effectively protect individuals’
rights.124 Accordingly, the Court went beyond considering whether the procedure to
register births had been adequate, stating that public authorities must act diligently to
assist individuals in obtaining birth certificates and identity documents in cases where
they face obstacles beyond their control.125 The Court also relied on the best interest of
the child to have their births registered.126
Importantly, the ECtHR not only established a connection between birth registration and
Article 8 but constructed birth registration as an intrinsic feature of the right to respect
for private life. Consequently, the scope of its evaluation broadened to include the
applicant's “right to a recognised identity” in addition to assessing the repercussions of
lacking a birth certificate on the applicant’s education and employment prospects.127 The
Court also explicitly noted that the right to respect for private life includes “ where
119
ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, para 118.
See generally ENS, Birth Registration and the Prevention of Statelessness in Europe (July 2020).
121 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 118.
122 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 131.
123 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 119.
124
ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 122.
125 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 124.
126 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 124.
127 ECtHR, G.T.B. v. Spain (application no. 3041/19), 16 November 2023, paragraph 122.
120
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