Migration, forced displacement, and childhood statelessness
With the dissolution of the Soviet Union in 1991, many people who had migrated within the territory of the former Soviet Union suddenly found themselves resident in new countries. Millions of people became stateless as a consequence of problems with documentation and acquisition of nationality. Speaking at the 2016 UNHCR NGO Consultations, youth representative Zhirair Chichian explained how his family had migrated within the former Soviet Union when he was a child and how even after returning to his country of birth, he remained stateless and struggled with limited educational opportunities and future prospects. He recounted how he felt like a swallow, who had grown up in a nest with others who would soon fly away, but that he could not fly because he had a broken wing. With the help of UNHCR, he was able to be officially recognised as stateless, which has changed his life. He continues to fight to receive citizenship and to fulfil his dreams.
The challenge of preventing statelessness and protecting stateless persons in the context of migration and forced displacement is undiminished today. This Chapter seeks to contextualise childhood statelessness in the migration context by examining both statelessness caused by migration and the increased vulnerability1 that statelessness adds to the experiences of ‘children on the move.’ Of particular concern in this regard is the ability and resilience of migrant stateless children to avoid risks that lead to specific child rights violations. Unfortunately, as explained below, statelessness greatly contributes to vulnerability and strips many migrant children and their families of their ability to prevent and to respond to child rights violations.
2. The risks of statelessness for children on the move
The majority of stateless children have never left their country of birth, but remain stateless due to a variety of reasons, including discrimination and weak child protection systems. Still other factors, such as conflict, human rights violations and collective expulsions, force stateless children to leave their home communities and to migrate abroad. Statelessness is therefore a cause of social exclusion, persecution and forced migration. Yet, migration may also increase vulnerability and put individuals, particularly children, at risk of statelessness. Indeed, there are several ways that ‘children on the move’ may be threatened by statelessness.
2.1 Reasons for flight or migration
UNICEF estimates that sixty-five million children are ‘on the move’ around the world fleeing from conflict, poverty and extreme weather. The conditions and developments in children’s community of origin can influence their ability to establish their nationality, especially once they are on the move. Some children may be stateless in their home country, while others may face the risk of statelessness due to lack or loss of documentation as well as separation from family. Children affected by armed conflict often experience the loss of family members and separation from their parents or primary caregivers. Civil war and state succession may lead to ethnic cleansing and denationalisation of some groups. Children who have fled may not even be aware that they have been stripped of their nationality. Other migrant children may think that they have two nationalities because their parents come from two different countries, yet if those communities or countries are in conflict, neither may recognise the child as a national. Furthermore, when parents possess different nationalities, the child may also face challenges when dual nationality is actively restricted by their parents’ home countries. Children born in transit, particularly during sea crossings, may face other challenges to documenting their birth and acquiring a nationality while on the move. Migrant children who have been arbitrarily deprived of their nationality and forced to flee persecution are particularly vulnerable to further violations of children’s rights.
2.2 Problems with birth registration
Legal parentage is said to be ‘the gateway through which many of the rights of children, and obligations to children, flow.’ This is one of the reasons why birth registration has been recognised as a ‘critical first step’ in ensuring the rights of children on the move. As the birth certificate given following registration normally includes proof of parentage as well as place of birth, it is often an essential tool in establishing those important links. In this regard, birth registration is “often essential to the reduction and prevention of statelessness.” However, this does not mean that all children without birth certificates are stateless because most children automatically acquire nationality at birth based on their family links according to the jus sanguinis rule. However, for certain categories of children – including asylum seekers, refugees, and migrant children – lack of birth registration may result in statelessness, especially when such documentation is required in order to prove family relations or place of birth. Worryingly, evidence shows that birth registration rates are generally lower than average for vulnerable and marginalised children, including internally displaced, migrant, and refugee children, as well as children born during or just after wars or natural disasters.
Many migrant children lack birth registration because of weak civil registration systems in their countries of origin as well as discrimination and barriers to registration. This gap in child protection is still a widespread problem in many countries of origin. Migrating without proper documentation, in an irregular manner, children may later face real difficulties in trying to establish a link with their home country. In addition, children born outside their parents’ home country in an irregular situation may also encounter barriers in trying to acquire the nationality of their parents, as well as accessing birth registration and nationality in the country of their birth. This is because some States refuse to register the children of non-nationals or may require a period of legal residence in order to do so, which often excludes not only irregular migrant children, but also asylum seekers and refugees who may not meet the requirements.
Furthermore, the attitudes and inaction of local authorities may exclude irregular children from birth registration. Irregular migrant parents may also fear repercussions if they approach the authorities to register their children. Without a birth certificate, such children are likely to lack the evidence that may be necessary if acquisition of nationality is not automatic, and, therefore, are in danger of remaining stateless. Finally, in some cases, there may be no barrier to birth registration, but the information provided on the birth certificate, for example only the name of the mother and not that of the father, may be insufficient for the country of origin to recognise the child as one of its nationals. It is crucial that host countries improve birth registration procedures and related documentation so that children do not fall through such gaps.
2.3 Gender discrimination
Gender discrimination in nationality laws in 27 countries currently prevents mothers from passing their nationality on to their children and can render children stateless. This inequality affects women from some of the main countries of origin of asylum seekers and refugees such as Iran, Iraq, Somalia, Sudan, and Syria. In such cases where the child is unable to acquire the father’s nationality because the father is stateless, unknown or absent, the child risks remaining stateless if there is no safeguard in place to allow them to acquire the nationality of their country of birth or residence. Furthermore, the child may also be unable to acquire the father’s nationality if according to the laws of his country this is not possible when he is unable or unwilling to fulfil the necessary administrative requirements, or if the child is born out of wedlock or born abroad. The persistence of gender discrimination in some countries’ nationality laws means that for asylum seeking, refugee, and migrant children, the loss of their father or separation of their family may leave them stateless.
2.4 Lack of safeguards
In line with international law and best practice, States should adopt safeguards in their legislation in order to grant nationality to children born on their territory who would otherwise be stateless. Ideally, such measures will automatically grant nationality or, alternatively, create a non-discretionary application process as soon as possible after birth. Provisions concerning foundlings and orphans are sometimes applied in the case of unaccompanied migrant children found on the territory, especially when the child concerned is an infant or very young. However, several States limit application of this important safeguard to babies under 12 months old. At a minimum, UNHCR advises that such measures should apply to “young children who are not yet able to communicate accurately information pertaining to the identity of their parents or their place of birth.”
It is also necessary to advocate that safeguards be designed and implemented in order to give special consideration to the situation of asylum-seeking and refugee children. Some States have deliberate policies not to confer nationality to children born to refugees, especially when a parent is unable to confirm their identity. However, when a child does not acquire the nationality of his or her parent automatically, the country of refuge should grant them its nationality in line with Article 1 of the 1961 Convention on the Reduction of Statelessness. For example, this would be warranted in cases where the very nature of refugee status precludes parents from contacting their consular authorities. With regards to the naturalisation of stateless migrant and refugee children who were not born on the territory, there should be a facilitated naturalisation procedure available. While some States still have strict criteria regarding the proof of identity necessary for naturalisation, other States make special accommodations for refugees.
2.5 Conflict of nationality laws
When nationality laws of one State conflict with those of another, children may have difficulties acquiring a nationality. For ‘children on the move’, the risk of such a conflict of laws is very real because their movement across borders or their birth abroad generally concerns the nationality laws of at least two countries. A scoping paper on statelessness and displacement provides an overview of scenarios that may affect migrant children such as when: the limits and exceptions in jus soli and jus sanguinis regimes mean that a child does not acquire a nationality at birth; residence abroad may lead to loss of nationality or the inability to confer nationality on one’s children; protracted refugee situations erode away the rights and identity of those concerned; and when political upheaval or State succession results in denationalisation and discriminatory practices, which increase the risk of certain groups becoming stateless.
2.6 Return measures
Finally, it is important to consider how forced deportation and expulsion, as well as assisted voluntary return measures, may contribute to violations of migrant children’s rights and make it even more difficult for them to prove the necessary link with a country that may enable them to acquire a nationality. Forced deportation and expulsion measures may separate children from their families and place them in a more vulnerable situation. Additionally, in some cases, return procedures have increased vulnerability for children because they were removed without vital documentation, such as their birth certificate, when they had been born abroad outside their parents’ country of origin. If unable to register upon return, these children may be treated as non-citizens in their or their parents’ country of origin and can face many barriers in accessing education, healthcare and other services.
The checklist on implementing returns in line with children’s rights contains a good practice indicator to ensure that all necessary documentation including birth certificate, health and education records is acquired pre-departure. Projects monitoring the effects of return policies on separated and unaccompanied children also identified the possession of a birth certificate to be in the best interests of the child and essential for the child’s ability to exercise their rights upon return. Further attention should be given in future monitoring projects of this kind to ensure that children possess not only a birth certificate upon return, but also that safeguards are in place to identify and to resolve any cases of statelessness.
3. The impact of statelessness on children on the move
Statelessness has a significant impact on children and on the realisation of all of their rights. The UN Convention on the Rights of the Child (CRC), which has been ratified by 196 States, takes a holistic approach towards children’s rights, which are indivisible and interrelated. Equal importance should be attached to each and every right of the child. Yet, when we review the clusters of the CRC, it is very apparent that stateless ‘children on the move’ are at risk of serious violations in every category outlined below.
3.1 General principles of the Convention on the Rights of the Child
The interpretation and implementation of the CRC should be guided by its four general principles: the principle of non-discrimination, the best interests of the child, respect for the views of the child, and the right to life, survival and development. Statelessness undermines all of these principles as stateless children face serious discrimination, often have their best interests neglected, rarely are heard and face restrictions on their livelihoods and potential for development. This is especially the case for stateless migrant children who may face discrimination and language barriers as well as fewer resources in times of austerity.
3.2 Civil rights and freedoms: birth registration, identity, nationality and family relations
All children should be registered immediately after birth and have the right to acquire a nationality (Article 7) but many stateless migrant children encounter obstacles with birth registration, as noted above. This means that the child’s right to identity, which encompasses name, nationality and family relations, is compromised (Article 8). Without the sense of belonging that identity creates, children and youth grow up socially excluded and often living in poverty. Living in such conditions on the margins of society can influence some stateless youth to decide against founding a family and having children of their own.
3.3 Violence against Children
Stateless migrant children are often at risk of abuse and exploitation. In particular, girls may be forced into early marriage including as a means of escaping poverty or attempting to secure a nationality through marriage. Additionally, those who are irregular and stateless are more vulnerable to arbitrary and lengthy immigration detention especially because their lack of nationality creates a barrier to removal procedures. Immigration detention is never in the best interests of the child and should be avoided. As emphasised by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: “Even very short periods of detention can undermine a child’s psychological and physical well-being and compromise cognitive development.” Detention results in mental health problems and higher rates of suicide and self-harm. Moreover, despite a lack of documentation, some stateless children will be removed in violation of the principle of non-refoulement and, therefore, risk facing persecution, exploitation and abuse.
3.4 Family environment and alternative care
‘Children on the move’, particularly those fleeing conflict and persecution, may become separated from their families. In this context, refugees and stateless persons may not be able to obtain the necessary documentary evidence for the family reunification process. Stateless children often face unsurmountable barriers to family reunification especially when they lack documents to prove their family links and to allow them to travel freely or even to return to their country of birth. At the same time, separated and unaccompanied stateless children are often denied alternative care or placed in care arrangements that are not equitable and that do not meet the standards offered to children who are nationals.
3.5 Freedom of movement
Stateless migrant children may face severe limitations on their ability to travel and to choose a place of residence. This further limits their opportunities for education, work and leisure. As noted above, it can also infringe on their right to private life and their ability to enjoy their family life.
3.6 Basic health and welfare
Another obvious violation of the rights of stateless migrant children is the barrier that many face when trying to access healthcare services. Many States require documentation to provide medical treatment and some do not even provide vaccination to stateless children. Additionally, higher medical costs for non-nationals and discrimination prevent stateless children from exercising their right to health. Irregular status or non-national status also often means exclusion from social welfare and child benefits. Stateless migrant children generally have a lower standard of living and most live in poverty on the margins of society. The denial of property rights may further contribute to living in precarious conditions and to intergenerational poverty.
3.7 Education, leisure and cultural activities
All children have the right to education (CRC Article 28), play, leisure, and cultural activities (CRC Article 31). However, problems in accessing and continuing education are one of the most frequently reported effects of statelessness. In particular, such obstacles severely limit the opportunity of stateless adolescents to pursue higher education or to benefit from vocational training opportunities. Furthermore, stateless migrant children belonging to ethnic and linguistic minorities may not be able to exercise their cultural rights (CRC Article 30) and, for example, to study in their native language. Lack of educational opportunities diminish their chances of securing decent job prospects in the future. Stateless youth express frustration with such circumstances, which prevent them from applying their skills and realising their full potential.
3.8 Special protection measures
There is evidence that shows that both children without birth certificates and stateless children are more vulnerable to sexual exploitation, trafficking, and recruitment into armed forces. Without documentation, stateless children are often denied access to education and livelihood options. Due to social deprivation, they may end up living and working in street situations and face further protection risks. Their marginalisation and lack of prospects to earn a living make them vulnerable to being exploited in the worst forms of child labour. Stateless children rarely receive the protection and support that they deserve including measures that may be necessary for their physical and psychological recovery as well as social reintegration.
While statelessness and unsafe migration both increase children’s risk of being exposed to child rights violations, better responses can help to minimise vulnerability and to protect children on the move who are stateless. In some countries, “integrated child protection systems” are being developed, which could have a key role to play in identifying stateless migrant children and in referring them to protection and assisting them to secure durable solutions in line with their best interests including the acquisition of a nationality. In many countries, such mechanisms are targeting mainly unaccompanied and separated children, but there is a need to improve such assessments and services for children migrating with their families as well. In particular, there is a need for more research and better interventions while children and families are on their journey in first countries of reception or transit countries. Additionally, repatriation measures should include safeguards to identify and to resolve cases of child statelessness.