all her/his official documents.56 Under the second scenario (see above) two main outcomes are possible: Scenario 2, outcome A Perception of the parents’ country of nationality regarding the refugee child’s nationality As the child cannot be registered with the authorities of the parents’ country of nationality, that country will have no information about the existence of the child, the child will not be entered into population registries, etc.3 The host country authorities will automatically register the child with the parents’ nationality. Perception of the host country regarding the refugee child’s nationality 3. Scenario 2, outcome B All authorities will consider that the child has a nationality, and therefore: »» no efforts will be made later on to clarify whether this nationality status is indeed valid; »» no best interest assessment will be conducted; and consequently »» no safeguards against statelessness will be activated. The host country authorities will register the child as of unknown nationality. This condition may persist for several years or decades without any authority willing and having the competence to determine the real nationality or the statelessness of the child, plus no best interest determination will be conducted. In a more positive scenario, state authorities may perceive this as problematic in the long run, and initiate a nationality/statelessness (and best interest) determination procedure later. Millions of (non-refugee) children face a similar situation in the world, to the extent that their birth is not registered with the country of nationality and/or habitual residence, and/or they do not hold any official proof of their nationality. Most of them will still be automatically ‘presumed’ to be a national in most relevant situations (e.g. when attending school, accessing health care or other services, etc.), even if they cannot show particular papers proving this link. What makes refugee children’s situation different in this respect is that they were born and live – often permanently – outside their country of nationality, with which they cannot establish any official contact. Under these circumstances it is much less likely that they will be automatically ‘presumed’ to be a national by the authorities of their country of nationality, lacking the necessary documentary evidence. From a traditional nationality law perspective these factors are not really relevant; the nationality bond exists due to the legal automatism foreseen by the law of the country of origin. Looking at this issue from a statelessness and best interest perspective one may come to a different conclusion. International law defines a stateless person as someone ‘who is not considered as a national by any State under the operation of its law’.57 The definition does not merely say that a stateless person is not a national of any state under its law. ‘Consider’ is a transitive verb, referring to an action through which a state attributes a certain quality to a person. Also, the UNHCR clearly states in its relevant guidance that ‘Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice’.58 Can a State ‘consider’ a person in a certain manner, can it apply its law in practice in a way that is adapted to the individual circumstances of the person, if it is not aware of this person’s existence? This indicates a significant discrepancy between the traditional approach towards nationality and the more ‘practice and protection’ oriented interpretation of the 1954 Statelessness Convention and UNHCR guidance. The best interest principle (which binds all EU Member States both under the EU Charter when implementing EU law and the 1989 Convention on the Rights of the Child) should be evoked in support of the latter approach (see more details in the following section). In any case, further development in doctrine, jurisprudence and literature seems indispensable to properly clarify this issue, for instance by creating concrete benchmarks and indicators. V. THE CHARTER AS A TOOL TO ENSURE THAT ALL REFUGEE CHILDREN ACQUIRE A NATIONALITY WHERE THE CHARTER PROVIDES A CLEAR SOLUTION With regard to the previously presented scenario 1 (where the ‘otherwise statelessness’ of the child can be clearly established at birth), the majority of EU Member States have explicit legal safeguards in their 56 57 58 A research study documented this problem in Hungary, particularly focusing on refugees: Gábor Gyulai, Nationality Unknown? An Overview of the Safeguards and Gaps Related to the Prevention of Statelessness at Birth in Hungary, Hungarian Helsinki Committee, January 2014, pp. 14-18, http://www.refworld.org/docid/5310640b4.html 1954 Convention relating to the Status of Stateless Persons, Article 1 (1). UNHCR, Handbook on Protection of Stateless Persons (2014), Para. 23, http://www.refworld.org/docid/53b676aa4. html – emphases added. 12