Preventing statelessness of migrant children
1. Introduction: impact of migration on childhood statelessness
Throughout the migration cycle, a number of situations may have an impact on a child’s nationality. Some of these situations may give rise to uncertainty about what nationality the child has and, in more extreme cases, may leave him or her stateless. In the various stages of the migration process, the causes of statelessness or risk of statelessness may lie in the law and in its application or in situations of exclusion, invisibility or particular vulnerability in which children may find themselves. In other cases, a child’s nationality becomes difficult to prove due to lack of an identity card or other document to certify his or her birth or filiation.
The introductory essay of this chapter already discussed the impact that situations of migration or forced displacement can have on children’s access to nationality. This essay re-introduces the challenges by looking at some of the lesser-known factors that can influence a migrant child’s acquisition and retention of nationality. Thereafter, it discusses how, even in the absence of a specific mandate on statelessness, some of the International Organization for Migration (IOM)’s programmes contribute to preventing situations of statelessness or risk of statelessness for children who have migrated from their country of origin alone or with their parents, as well as for children who are born outside their parents’ country of nationality.
2. Causes of statelessness among migrant children
15% of the 244 million people migrating today are aged below 18, translating to a total number of migrant children of around 36.6 million globally.1 Although most stateless children are not migrants, migration can have the effect of hindering a child’s access to a nationality or render it particularly difficult for a child to prove his or her nationality. This can occur due to conflicts of laws, inadequate civil registries or consular services and barriers posed by the status of migrant children or of their parents. Migrant children then may be left in limbo for protracted periods of time, with all the consequences that the lack of a recognised nationality can have on children’s access to basic rights. The following paragraphs look at three generally lesser-known situations in which nationality problems can arise for child migrants.
2.1 Unaccompanied children
The number of children sent by their families to look for employment opportunities abroad and travelling alone is significant.2 These children face huge difficulties in proving their nationality, particularly the youngest among them, who may be unable to communicate accurately information pertaining to the identity of their parents or to their place of birth. When a family exists, family tracing can help in establishing nationality and recovering identity documents. The situation is more complex for abandoned children or children who were separated from their family at a young age whose birth may not have been registered. Late registration, which is provided for in the law of many countries, may not be accessible from abroad. In other cases, it can be too cumbersome, financially or for the number of documents that are required as evidence, which may be difficult to retrieve when the child is far from his family. Provisions protecting foundlings from statelessness can help solve their situation. A higher number of States provide nationality to foundlings or to children of unknown parents3 compared to the grant of nationality to children, more generally, who would otherwise be stateless. However, for an unaccompanied child of unknown parents proving his or her birth on the territory may often be challenging, particularly if their birth has not been registered.
2.2 Child victims of trafficking
Identity is a fundamental right of the child and one that is too often infringed upon by traffickers. Many child victims of trafficking travel without papers or with forged documents. In many cases, documents are seized by the traffickers as a means of control. Children are often instructed by traffickers to lie about their identity, and sometimes even about their nationality to facilitate admission into the State of destination. Lack of documents, coupled with the fact that especially young children may not be able to provide information about their origin and the location of their family, can render it difficult to ascertain their nationality. Children may also be reluctant to return to their families to avoid failing their migration plan and disappointment with respect to their parents’ expectations. Similarly, families may be reluctant to identify their children, to increase their chance not to be returned and thereby remain abroad.
2.3 Lack of cooperation by States of origin in nationality determination in the context of returns
States of origin are often reluctant to cooperate with States of destination that are in the process of returning migrant children to their country of origin. As a consequence, particularly when the nationality of the child is unclear, this lack of cooperation prevents confirmation of nationality and the child risks remaining in a limbo for protracted periods of time. In some extreme cases, it can happen that the State of origin revokes the nationality of those who migrated irregularly, leaving them and their children stateless.4
3. IOM’s mandate and indirect impact of IOM’s programmes on preventing child statelessness
IOM does not have a specific mandate to deal with stateless persons. Nevertheless, its constitution allows the Organization to work with all categories of migrants. IOM defines migrants as any persons who move away from their place of habitual residence either within the State or across international borders, irrespective of the causes of the movement, of its duration and of the person’s legal status. As a consequence of its broad mandate on migration, IOM deals with stateless persons who migrate from their original place of residence, including unaccompanied or separated migrant children, and acts to prevent statelessness connected to migration. The activities carried out by the Organization can be critical to prevent statelessness among migrant children. Some of these activities are described below.
3.1 Building the capacities and facilitating contacts with consular authorities
Because of its mandate, IOM acts often as intermediary between migrants and the consular authorities. The Organization assists migrant parents in registering the birth of their children born abroad with the consular authorities of their country of origin or with the local authorities, depending on the system. It also helps parents deal with late birth registration, and go through the cumbersome collection of documents that are generally required.
Ensuring access to documentation can be key for both unaccompanied or separated children and the accompanied ones to be able to prove their nationality. In the context of humanitarian crises, access to documentation is one of the criteria of durable solutions identified by the Inter-Agency Standing Committee (IASC) Framework on durable solutions for internally displaced persons. In supporting efforts to progressively resolve displacement situations, IOM applies these criteria to all the Organization’s persons of concern, including those who are displaced across borders and other migrants. For cross-border movements, IOM collaborates closely with relevant consular services, where present in the country of evacuation or resettlement, or in countries of nationality, to determine the nationality of migrants and their children, or of unaccompanied or separated children, and facilitate the issuing of civil and travel documentation. The same type of assistance is also provided in times of peace to migrant children, particularly the ones who are unaccompanied or separated, as well as to other vulnerable migrants.
As a complementary activity, IOM builds the capacity of consular authorities including with regard to good practices in birth registration, nationality determination in uncertain cases and in ascertaining the identity of victims of trafficking, which also includes determining their nationality. Through the development of tailor made manuals and delivery of trainings to consular officers, the Organization contributes to avoiding mistakes or arbitrary decisions when it comes to verifying whether a child is a national of a given country.5
3.2 Family tracing for unaccompanied migrant children
IOM has been involved in family tracing activities for many years. They are usually inserted into programs which have other specific outcomes, e.g.: response and protection programs for victims of trafficking, return programs, humanitarian evacuations etc. The IOM office in Rome initiated family tracing as a stand-alone programme in 2008. Since then, stand-alone programmes of family tracing have been developed by IOM offices in various other regions. Family tracing activities have the objective of locating the family or other caregivers of the child, while assessing the general socio-economic situation in the country of origin, as well as the child identity and migration history. Family assessments are moreover aimed at facilitating the identification of the most suitable, long-term solution for the child, by the ‘best interest of the child’ determination process. In the cases in which the nationality of the child is uncertain, family tracing can help establish it. The evidence collected during these assessments can then be used as a proof of nationality with the relevant authorities. The ultimate aim of family tracing is to reunite the child with his or her family, back in the country or origin, or in their country of legal residence if this is in their best interests. Family reunification is normally also accompanied by a financial reintegration package to help the family set up a small income generating activity, deal with the reunification, increase its stability and prevent the possible remigration of family members, including the child. This can help prevent the child having to emigrate again through irregular channels and avert the risk of leaving him or her without a proof of nationality, particularly in the case of prolonged irregular migration.
3.3 Rebuilding the identity of children victims of trafficking
A common, long-lasting consequence of child trafficking is that it deprives children of their identity. This happens both through the physical deprivation of documents (e.g. seizure by traffickers) and the negation of the child’s own will and personality. As a consequence, reconstructing all the components of the child’s identity, including nationality, can be very challenging. IOM works to identify victims of trafficking and especially those among them who are children and may need specific assistance. Child victims of trafficking represented the largest group of unaccompanied migrant children assisted by the Organization, based on a review conducted in 2009, and 13% of the 7,000 victims assisted by the Organization in 2015. Identification of children may entail the verification of their nationality, especially in case of transnational trafficking. A child’s identification, including his/her nationality, is among the preconditions for the best interests determination process to identify the most suitable and sustainable solution for the child.6 In transnational trafficking cases and when the child has no identity or travel documents, IOM facilitates contact with the consular authorities of the relevant country to verify the nationality, ensure that the child can recover his or her travel or identity documents or be issued some temporary ones. In cases of uncertain nationality, the Organization assists the child in going through the process of nationality determination with the respective diplomatic missions. If the child cannot claim any nationality, or in case the claimed nationality is not recognised, the child is usually referred to UNHCR, which has a specific mandate to deal with stateless persons, including children.
3.4 Nationality determination in the context of assisted voluntary return and reintegration
Assisted Voluntary Return and Reintegration (AVRR) is one of the core support activities provided by IOM to migrants and States, often in collaboration with NGOs and diaspora communities. AVRR programmes offer migrants the possibility to return home, if they want to do so, in a humane and dignified manner. AVRR programmes can also assist families with children as well as children who travel unaccompanied or separated.7
In the context of AVRR programmes, when unaccompanied and separated migrant children are involved, according to the Organization’s protocols, it is first necessary to confirm the identity of the legal guardians in both the host country and the country of origin, to verify the results of the best interests determination and to confirm that a family tracing and assessment process has been completed. Uncertainty with regards to the nationality of the child may arise in the context of this initial phase, particularly for children who do not carry any identity documents, which is often the case for unaccompanied or separated migrant children. The pre-departure assistance provided by the Organization also includes assistance with the issuance of travel documents. In this context, IOM liaises with the consular authorities of the presumed country of nationality to confirm the nationality of the child and, when necessary, helps him or her go through nationality determination procedures.
In its work with migrant children, IOM has been confronted with a significant number of cases in which the nationality of the child was unclear or difficult to prove because of lack of documentation, often coupled with the limited information children, particularly those of a young age, can provide. This does not necessarily entail that the child is stateless. However, situations of uncertain nationality, if unresolved, may in the long run lead to statelessness. After many years abroad, especially when they are in an irregular situation, it may become impossible for children to prove their nationality or they may risk losing it. Furthermore, due to their irregular situation in a country, in most cases, children will not be able to access naturalisation. As a consequence, their plight, the barriers they face in accessing the most basic services, and their uncertain future are comparable to the ones of stateless children. The aim of IOM’s activities in this area is to prevent prolonged situations of uncertainty. To do so, through its various programmes, the Organization helps migrant children ascertain their nationality and secure the documents that are needed to prove it. It thus contributes to averting child statelessness and ensuring children access to their rights.
1 It should be noted that this figure only includes foreign-born children; therefore, if children born abroad from migrant parents had also to be included, the percentage would be much higher.
2 According to UNHCR, 98.400 unaccompanied children lodged an asylum application in 2015 in 78 countries, this figure is the highest since 2006. According to a joint IOM-UNICEF study they represented 20% of the total of people arriving to Europe in 2015. In 2014, at least 14% of children applying for asylum in Europe were unaccompanied or separated. Since in some countries in Europe, formal registration procedures do not allow for their identification, the number of unaccompanied or separated children is most likely much higher.
3 In some States the provisions on unknown parents apply only to new-born infants or to children up to a certain age (Bronwen Manby, ‘Citizenship law in Africa’, p. 50). However, UNHCR recommends that provisions on foundlings should “apply to all young children who are not yet able to communicate accurately information pertaining to the identity of their parents or their place of birth”.
4 This is the case in Myanmar, see Sophie Nonnemacher and Ryzard Cholewinski, ‘The nexus between statelessness and migration’, in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014), p. 247 at 260.
5 For example, in 2016, IOM Mission in Azerbaijan has developed a Consular Reference Manual for Azerbaijani consular officers. The Manual includes a session on nationality, specifying also the rules to be applied in cases of uncertain nationality. The publication of the Manual is forthcoming.
6 These generally include, amongst others: the reunification with the child’s biological family, in case the assessment indicates the suitability of the family, and the return to the child’s country of origin; the child’s integration in the country where he/she was identified, or resettlement to a safe, third country. The latter is carried out with the support of the UNHCR.
7 In 2015; 24% of the migrants returnees assisted were children. A stark increase from the 11% of 2012.