Why Europe must separate childhood statelessness from immigration control
by Evangelos Trimmis / Law-Clinic.eu
A child is born in Europe. The hospital knows when and where the birth occurred. The authorities know who is caring for the child. Nevertheless, the parents cannot produce all the documents demanded by the civil registry.
Perhaps the mother’s identity is disputed. Perhaps her nationality cannot be confirmed. Perhaps she cannot obtain proof that she was unmarried when the child was born. Perhaps a foreign marriage, divorce or name change has not been recognised. The father’s legal status may depend on documents issued in another country, and the States involved may disagree about their validity.
The result can be devastating. Registration is delayed or incomplete. Parentage remains uncertain. No foreign State accepts responsibility for the child. The country of birth refuses to grant its nationality because the parents do not satisfy its nationality or residence requirements.
The child begins life between legal systems—born somewhere, recorded somewhere, but belonging nowhere.
Not every unregistered child is legally stateless, and not every child whose nationality is recorded as “unknown” lacks a nationality under foreign law. These distinctions matter. But the practical danger is undeniable: unresolved parental documentation can prevent the child from proving or acquiring any nationality for years.
Europe must ask an uncomfortable question:
Should a child bear the legal consequences of the parents’ uncertain identity, nationality, marital status or immigration position?
My answer is no.
When the protection of family becomes an obstacle to the child
European family laws contain safeguards intended to protect marriage, legal parentage and the reliability of civil-status records.
In certain legal systems and factual situations, authorities may request evidence of the mother’s marital status before determining legal paternity. This is because a marriage can produce a legal presumption that the mother’s husband is the father of a child born during that marriage.
The purpose of such a rule is understandable. The State wants to prevent contradictory paternal relationships, protect existing family structures and preserve the integrity of the civil register.
But what happens when the mother cannot obtain the necessary certificate?
She may come from a State with a collapsed administration. Her identity documents may have been confiscated, rejected or issued under different names. A foreign divorce may not yet be recognised. The embassy may be unable to cooperate, or the necessary proceedings may be possible only in a country to which the family has no access or cannot safely or legally travel.
A rule created to protect the institution of family can then produce the opposite result. Instead of protecting the child’s family identity, it prevents that identity from being legally established.
The law protects the abstract order of the register while leaving the actual child outside it.
The child is not responsible for the parents’ documents
A newborn child did not choose:
- whether the parents were married;
- whether a foreign divorce was registered;
- which name a parent previously used;
- whether the parents possess valid passports;
- whether an embassy recognises their documents;
- or whether the parents entered or remained in the country legally.
Yet the child can suffer the consequences of all these circumstances.
Without effective registration and established nationality, the child may face difficulties obtaining identity and travel documents, accessing public services, proving family relationships, travelling with the family and later exercising educational, employment or political rights.
Article 7 of the UN Convention on the Rights of the Child requires every child to be registered immediately after birth and recognises the child’s right to a name, to acquire a nationality and, as far as possible, to know and be cared for by their parents.
Article 8 requires States to respect the child’s identity, including nationality, name and family relations.
These are rights of the child. They are not rewards given to the parents for possessing satisfactory documents.
Europe’s fear of creating immigration rights
There is a reason why many European States resist broad birthright citizenship.
If every child born on European territory automatically acquired the nationality of the country of birth, some governments fear that pregnancy might be used strategically to create immigration rights for the parents.
A citizen child may have a right to remain in the country. Removing the child’s primary caregiver could make the child’s citizenship ineffective or force the child to leave the territory of their own State. European family-life and EU citizenship law may therefore limit the State’s ability to remove the parents.
This concern cannot simply be dismissed. Legal rules can create incentives, and every serious legislative proposal must consider the possibility of misuse.
But Europe’s present response frequently confuses two legally separate questions:
- What nationality and protection should the innocent child receive?
- What residence rights should follow for the adults?
A State may legitimately investigate whether an adult used false documents, concealed a marriage or manipulated civil-status procedures. It may also determine immigration rights according to proportionate and lawful conditions.
What it should not do is use the child’s statelessness—or prolonged uncertainty about nationality—as a method of discouraging the conduct of adults.
The State may investigate the parents. It must not punish the child.
A new European principle
Europe needs a common minimum safeguard:
A child born in a European State who has not been established as possessing another nationality within a short and clearly defined period should acquire the nationality of the State of birth.
This would not necessarily mean completely unconditional nationality for every child born in Europe. The safeguard could apply specifically where no other nationality has been legally established after a proper and child-sensitive investigation.
The decisive question should not be whether the child might theoretically obtain another nationality in the future.
Authorities should determine:
- whether another nationality arose automatically at birth;
- whether a foreign State presently regards the child as its national;
- whether registration merely proves an existing nationality or creates a new one;
- whether the required documents are legally obtainable;
- and whether the foreign procedure is genuinely accessible in practice.
A speculative possibility of acquiring nationality should not justify leaving a child indefinitely in the category “nationality unknown.”
The Council of Europe has emphasised that authorities should determine whether a child would otherwise be stateless as soon as possible rather than prolonging an undetermined nationality status. This principle should become enforceable in national law.
A period of twelve months could provide a reasonable starting point for debate. If no nationality has been established within that period—despite genuine cooperation and investigation—the State of birth should assume responsibility.
The child’s nationality should not later be withdrawn merely because the parents’ documentation is eventually clarified. Otherwise, the child would remain exposed to permanent insecurity.
Fraud committed by an adult should be addressed through sanctions against that adult, not through the destruction of the child’s legal identity.
Do not erase the biological parents
One possible response would be to grant nationality to the child while recording adults with uncertain identities merely as guardians or representatives until their legal identity is proven.
This proposal has an understandable purpose: the child would receive nationality without the State being forced to accept unverified information about the parents.
However, recording identifiable biological parents as legally “unknown” could create another group of children with defective civil-status records.
The child might later face problems concerning:
- maintenance;
- inheritance;
- parental responsibility;
- medical decisions;
- family reunification;
- nationality by descent;
- and the right to know their origins.
The better solution is not to erase the parents but to record information at different levels of certainty.
The civil register should distinguish between:
- the fact and place of birth;
- the person who gave birth;
- that person’s claimed identity;
- the identity documents presented;
- the degree to which the identity has been officially verified;
- biological parentage;
- and legal parental responsibility.
The mother could therefore be recorded on the basis of the birth, with an annotation that parts of her identity remain under verification. The unresolved documentary issue would attach to her record rather than preventing the child’s registration.
Similarly, a claimed father could be recorded through a provisional parentage procedure where immediate final recognition is impossible. The matter could later be corrected through an accessible administrative or judicial process.
The principle should be:
Record the child immediately. Investigate disputed adult information separately.
The limited role of DNA testing
DNA testing can be valuable when biological parentage is genuinely disputed. It may confirm a biological connection between the child and the person claiming to be a parent.
But DNA cannot answer every legal question.
It does not necessarily prove a person’s name, nationality or marital status. It does not by itself determine parental responsibility, nor can it resolve every issue arising from adoption, assisted reproduction or surrogacy.
DNA testing must therefore remain a supporting evidentiary mechanism, subject to consent, privacy safeguards and judicial supervision where necessary.
It should not be available only after the parents marry. Children born outside marriage are entitled to the same protection of identity, nationality and family life as children born within marriage.
Marriage may simplify particular legal questions, but it should not determine whether a child can have recognised parents.
Separate the child’s nationality from the parents’ residence rights
The most important part of this reform would be the separation of the child’s status from that of the parents.
If the child acquires the nationality of the State of birth, this should not automatically guarantee both parents an unconditional permanent residence permit.
European States could instead provide:
- a temporary caregiving residence right for the person actually responsible for the child;
- protection against removal where separation would be contrary to the child’s best interests;
- continued review of the adult’s identity and immigration circumstances;
- permanent residence only after additional statutory conditions are fulfilled;
- and sanctions where an adult is proven to have committed fraud.
This model would preserve the practical value of the child’s citizenship without transforming childbirth into an automatic and unrestricted immigration route for adults.
The caregiver’s temporary residence would not be a reward for irregular migration. It would exist because a citizen child cannot meaningfully exercise the right to remain in their own country without the person on whom they genuinely depend.
The child’s permanent status and the adult’s conditional status can coexist.
Europe cannot solve this only through the European Union
Nationality remains primarily within the competence of the individual European States. EU citizenship follows from possession of the nationality of a Member State; it does not normally replace national citizenship.
A European reform would therefore require action on more than one level.
National legislatures must introduce effective safeguards for children born without an established nationality. The Council of Europe can develop common standards concerning birth registration, nationality determination and the avoidance of childhood statelessness. The European Union can act within its competences where nationality uncertainty affects EU rights, non-discrimination, child protection or the effectiveness of EU citizenship.
The objective should not be complete uniformity in every nationality law. It should be a minimum European guarantee that no child remains stateless or of undetermined nationality because institutions cannot resolve the documentation of the parents.
A presumption in favour of the child
The present system often places the entire evidential burden on the family. Parents must approach multiple embassies, registries, courts and immigration authorities, sometimes in several countries and languages.
Cooperation must be required. Families should provide documents that are reasonably available and answer legitimate questions about identity and parentage.
But when the family has genuinely cooperated, the State should not be permitted to maintain uncertainty indefinitely.
After the prescribed period, the burden should shift.
The authority should then be required either to demonstrate that another State already recognises the child as its national or to confer the nationality of the country of birth.
This would transform “nationality unknown” from an indefinite administrative label into a temporary stage within a legally regulated procedure.
The child must not become an instrument of deterrence
The fear of misuse is real in many fields of law. Welfare systems, taxation, asylum procedures, family benefits and commercial transactions can all be abused. The normal response is to investigate the suspected abuse and sanction the responsible person.
We do not ordinarily deny an innocent third party a fundamental legal status merely because another person might benefit from it.
Childhood nationality should follow the same principle.
A child should not be kept stateless to deter possible behaviour by prospective parents. Such a policy turns the child into an instrument of migration control before the child is capable of exercising any choice.
It also creates a disturbing inequality. Children born into administratively uncomplicated families receive registration, nationality and mobility. Children born into families with disputed names, missing documents or cross-border legal problems inherit the uncertainty of the adults.
Europe should not create a hereditary form of administrative exclusion.
Citizenship for the child
This proposal does not require Europe to ignore fraud, abandon civil-status safeguards or grant unconditional permanent residence to every parent of a child born on European soil.
It requires something more precise:
- immediate and unconditional registration of every birth;
- provisional recording of parental information where verification remains incomplete;
- an active nationality-determination procedure;
- a strict time limit on “undetermined nationality”;
- nationality of the State of birth where no other nationality is established;
- preservation of the child’s family identity;
- and a separate, proportionate assessment of the parents’ immigration rights.
The governing principle is simple:
Citizenship belongs to the child. It is not a reward for the parents, and its denial must not become their punishment.
Europe can protect the integrity of its immigration systems without creating children who belong nowhere.
The conduct of adults may be investigated. Their documents may be questioned. Their residence rights may be conditional.
But the child must have a name, a recognised family identity and a State that accepts responsibility.
A child’s legal existence should never remain provisional.