By Merve Erdilmen (McGill University) and Iseult Honohan (University College Dublin). This article was originally published on the blog of the European Network on Statelessness.
Most European Union Member States participate in the international conventions concerning statelessness of 1954 and 1961, and have certain laws that grant citizenship to children who are born in the State who would otherwise be at risk of statelessness. The way in which these diverse laws are framed, however, means that many countries fall short of safeguarding such children from statelessness. Citizenship laws often specify additional conditions, impose a period of delay, require an application process, or have a discretionary procedure that create obstacles to acquiring citizenship for these children.
The 1961 United Nations Convention on the Reduction of Statelessness (Articles 1 and 3) requires States to grant citizenship to children who are otherwise stateless at birth either automatically or upon application. 21 EU Member States participate in this Convention, two of which have recently joined (Luxembourg in 2017 and Spain in 2018).
Our new study, Trends in birthright citizenship in the EU 28 Member States 2013-2020, carried out for the Global Citizenship Observatory (GLOBALCIT), shows that, as of January 2020, all but two of the 28 Member States grant citizenship to children born in the State who would otherwise be stateless, and that such provision has expanded slightly. Yet only eleven Member States grant such children citizenship unconditionally and automatically. A period of years or other conditions are required in fifteen Member States (see Table 1). Two Member States, Cyprus and Romania, have no provision for stateless children born in the country.
EU Member State provisions for citizenship for children born in the State who would otherwise be stateless, January 2020
Citizenship for children born in the country in Europe unconditional or conditional
Citizenship provides important protections that children need from birth. Most citizens of EU Member States gain their citizenship at birth, but this is predominantly on the basis of descent from a citizen parent. Unlike the widespread practice in the Americas, only five EU Member States have general laws granting citizenship to a child born in the country, irrespective of their parents’ citizenship, and no Member State provides this unconditionally.
As of early 2020, however, 26 Member States have some provisions for granting citizenship to children born in the country who would otherwise be stateless. This is unconditional and automatic in 11 countries: Belgium, Bulgaria, France, Greece, Ireland, Italy, Luxembourg, Poland, Portugal, Slovakia, and Spain. In other States, multiple and widely varying restrictions and conditions are applied for the acquisition of citizenship. These include requirements that parents are stateless or have an established residence status in the country, or that the child accumulates years of residence, meets certain character requirements, or must apply before a certain age. Once these conditions are met, the administrative procedures for acquiring citizenship also vary widely from simple declaration to discretionary naturalisation.
Conditions of parents’ statelessness or residence
Conditions include the restriction that no other citizenship is potentially available (as distinct from actually acquired by the child), or that the parents themselves are stateless or of unknown citizenship. This means that the children of foreign parents who, for various reasons, may not be able to confer their citizenship to children born abroad remain at risk of statelessness.
In Croatia, Finland and Slovenia, only children born in the State to parents who are either stateless or of unknown citizenship can claim citizenship on these grounds. Other States require parents to have lived for a certain period of time in the country before the child’s birth. They may also require a particular status of legal (Hungary, Latvia), or even permanent (Lithuania), residence. In some countries, a combination of these conditions is applied. In Czech Republic, parents must be stateless, and one parent must have a legal residence permit longer than 90 days; in Estonia, parents must be stateless, and have resided in the country for 5 years.
A period of delay or of residence after birth as conditions for citizenship
Where children born in the country who would otherwise be stateless do not gain citizenship automatically at birth, in several Member States they can acquire it only after a number of years of residence. This period of residence required ranges from 3 years in the Netherlands, through 5 years in Germany, Malta and the United Kingdom, to 10 years in Austria; while in Denmark, continuing residence is the criterion applied. In Sweden, citizenship can be acquired by declaration by a person up to a maximum age of 18 (raised from 5 years in 2015), on condition of holding a permanent residence permit. When citizenship becomes available only as the child grows up, there is sometimes also a maximum age limit (19 in Austria, 21 in Germany and 22 in the United Kingdom). In addition, other conditions, such as the absence of certain kinds of criminal convictions (Austria, Germany, Malta), may be applied.
Application procedures – entitlement and discretion
In some States with conditional provisions, when the conditions are met, a child who would otherwise be stateless gains citizenship automatically (Finland, Hungary), by a simple declaration (Estonia, Sweden), or by an entitlement to naturalisation (Germany, Malta). In other countries, however, a more rigorous process of application is required. A child may apply for a somewhat facilitated naturalisation – involving fewer conditions than regular adult naturalisation – or the procedure may be discretionary. In Denmark a discretionary naturalisation process, though without language or integration tests, is applied to children born in the country who would otherwise be stateless. In any case, all application processes present an additional hurdle to acquiring citizenship, and the more onerous the procedure the less useful is the legal safeguard against statelessness.
Foundlings
The risk of statelessness also hangs over foundlings: children found in the state whose parents are unknown. All EU Member States, except Cyprus, have jus soli regulations for foundlings. While most apply this unconditionally, maximum age restrictions apply in Ireland, Malta and Portugal (only newborn infants), Austria (only under 6 months), Czech Republic (up to 3 years) and Finland (up to 5 years).
Latvia and Estonia
There has been some tendency for countries with no special provision for citizenship on the basis of birth in the territory to grant citizenship for children from certain established groups within the country who have previously been at substantial risk of statelessness. Thus, noteworthy changes in the law concerning citizenship of children born in the country who would otherwise be at risk of statelessness have been enacted in Estonia and Latvia in recent years. Here, there were particular issues arising for children born to Russian minorities who did not gain the citizenship of either Russia or their States of residence at the time of independence in the 1990s. Pre-existing citizenship laws awarded citizenship at birth only on the basis of descent from a citizen parent. It has been estimated that in 2016, the absence of such a provision in Latvia meant that 4,816 children under 15 were at risk of statelessness.
In 2015, Estonia extended citizenship by declaration to children born in Estonia, whose parents are stateless or of the Russian minority who hold ‘undetermined citizenship’ if the child has lived in Estonia for at least five years. Previously, the parents had to apply through a naturalisation process for the child before the age of 15. From 2020, Latvia provides automatic citizenship at birth to children born in Latvia to Russian minority parents, termed ‘non-citizens’. Previously, this required a conditional declaration process after birth.
Conclusion
A higher proportion of EU Member States than in most other regions of the world have some provisions for granting citizenship to children born in the country who would otherwise be stateless. But fully adequate protection against statelessness requires that jus soli citizenship be provided in all countries at birth for stateless children in accordance with the provisions of the 1961 United Nations Convention on the Reduction of Statelessness. Thus, Cyprus and Romania should take steps toward introducing jus soli provisions for otherwise stateless children. Statelessness may arise also not only where parents are stateless, but where they may not be able to confer their citizenship to their child. Thus, the other Member States that provide for citizenship only where parents are stateless, impose other conditions, delay the granting of citizenship, require onerous applications or have discretionary procedures, should legislate to grant citizenship automatically at birth to children born in the country who would otherwise be stateless.