Recent cases relating to acquisition of nationality and risk of statelessness
The Provincial High Court of Guipúzcoa has for the first time granted Spanish nationality to a seven-year-old girl born in transit to Spain. After not being recognised by Morocco, where she was born, nor by her mother’s country, Cameroon, nor by Spain, where she has been for four years, the courts finally obliged the authorities not only to register her at all levels, but also to protect her from the situation of statelessness and therefore granted her Spanish nationality. The Court based its decision on domestic and international legal instruments, including the CRC (arts. 3.1 and 7), the Universal Declaration of Human Rights (art. 15.1), the International Covenant on Civil and Political Rights (art. 24) and the 1954 Convention relating to the Status of Stateless Persons (art. 1.1). The Court noted that since her arrival in Spain, the girl had no legal identity, contrary to SDG 16.9, and therefore was invisible. This meant that she did not have a health card and could not access public services. The judges recalled that the best interest of the child is a “constitutionally legitimate objective” enshrined in domestic provisions. Therefore, they argued that “allowing the child to remain in the limbo of statelessness, in a situation of inequality with respect to other children, represented a significant detriment to her basic and fundamental rights, among others, the right to education”.
Child Identity Protection (CHIP) celebrates this decision that orders the re-establishment of the missing elements of the girl’s identity, which in turn will contribute to guarantee her fundamental rights and access to basic services. This will make visible the reality and hopefully set a precedent for the growing number of children who, arriving in small boats along dangerous maritime routes, face numerous difficulties in obtaining their documentation and having access to basic rights.
Last April, in Melilla, a fraud was uncovered regarding the paternity of 78 immigrant babies. According to the main Spanish media, the mothers would pay between 1,500 and 3,000 euros to men with Spanish nationality to register the newborns as their own in order to obtain the Spanish nationality. There are a total of approximately 117 people involved, including the “pretend” fathers, intermediaries and mothers.
It seems that women of Moroccan nationality would give birth to their children in the hospital of Melilla, using the visa exemption, and through the intermediaries of the scheme, they would contact men of Spanish nationality. As several media report, in this way, the children automatically would obtain the certificate of nationality which their mothers would use to apply for Spanish documentation, and which also would allow them to initiate the paperwork to obtain a residence permit as the parents of a child with Spanish nationality. They could also later apply for family reunification for the children’s real fathers, who were usually from a third country with no documentation allowing access to the Schengen area. According to media, following the uncovering of the scheme the Melilla Public Prosecutor’s Office has been urged to take “the appropriate measures to revoke the Spanish nationality of the 78 newborns”.
Child Identity Protection (CHIP) stresses the urgent need for the States concerned to rapidly re-establish the full and true identities of these children by recording all birth information. In this context, it would include all that would lead to identification of family relations and the child’s origins. It is important that the children are not discriminated due to the circumstances of their birth and that all relevant States ensure that they are not stateless, invoking their discretionary nationality laws if necessary.
Source: https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Noticias-Judiciales/La-Audiencia-Provincial-de-Guipuzcoa-reconoce-por-primera-vez-la-nacionalidad-espanola-a-una-nina-nacida-en-patera-cuando-se-dirigia-a-la-costa-gaditana (court decision), https://cadenaser.com/nacional/2022/06/08/la-justicia-reconoce-por-primera-vez-la-nacionalidad-espanola-a-una-nina-nacida-en-el-camino-hacia-espana-cadena-ser/ and https://programaodos.org/; https://www.elperiodico.com/es/sucesos/20220422/destapan-melilla-fraude-paternidad-78-13552422 and https://www.lavanguardia.com/vida/20220422/8215400/destapan-melilla-fraude-paternidad-78-bebes-inmigrantes.html
