by Evangelos Trimmis / Law-Clinic.eu
Across Europe, the legal discussion surrounding statelessness is gradually moving beyond the traditional question of whether a person formally possesses a nationality.
A different question is becoming increasingly important:
What must a State do when a child lives for years without any nationality that can actually be established, documented or exercised?
This distinction matters.
There is a substantial legal difference between being formally recognised as stateless and simply being recorded by an administration as having an unknown or unresolved nationality. But from the perspective of a child living without a passport, without a secure nationality and without a functioning mechanism capable of resolving the problem, the practical consequences may become remarkably similar.
Recent European legal materials increasingly recognise that leaving this question unresolved is itself a legal problem.
Nationality Is Part of Legal Identity
The European Convention on Human Rights does not contain a general right to acquire a particular nationality.
The European Court of Human Rights has repeatedly made this clear.
But that is not the end of the analysis.
In its updated February 2026 guidance on nationality under Article 8 ECHR, the Court emphasises that nationality constitutes an element of a person’s identity. An arbitrary denial of citizenship may therefore, depending on its consequences, engage the right to respect for private life.
This distinction is fundamental.
European human-rights law does not normally tell a State:
“You must give this person your citizenship.”
But it increasingly asks:
“What has the State actually done to resolve this person’s legal identity and status?”
That is a considerably different legal question.
From Citizenship Entitlement to Procedural Responsibility
One of the most important principles contained in the ECtHR’s current nationality jurisprudence concerns people whose status remains unresolved.
Referring particularly to Hoti v. Croatia, the Court states that a State can have a positive obligation under Article 8 to provide an effective and accessible procedure—or combination of procedures—through which the person’s status can genuinely be determined.
The importance of this principle extends beyond the individual facts of Hoti.
It changes the legal perspective.
The question is no longer limited to whether the applicant satisfies the formal conditions of an individual nationality statute. Attention must also be given to whether the legal system provides a realistic mechanism for bringing prolonged uncertainty to an end.
For children, that question becomes particularly serious.
The Council of Europe: Child Statelessness Is More Than an Immigration Problem
In February 2026, the Council of Europe published its Compendium of Promising Practices on Access to Nationality for Stateless Children.
Its language is significant.
The Council describes child statelessness as depriving children not merely of a passport but of their right to a nationality and legal identity, with consequences for education, healthcare, legal protection, housing and vulnerability more generally.
The Compendium therefore focuses not only on nationality legislation itself but also on:
- prevention of childhood statelessness;
- nationality and statelessness determination procedures;
- access to legal assistance;
- access to information;
- access to justice;
- birth registration; and
- appropriate training of public authorities dealing with these cases.
This is an important development in legal thinking.
A nationality problem cannot always be solved merely by telling the affected person to obtain another document from another authority or another country.
At some point, the legal system must determine the status itself.
“Unknown Nationality” Describes a Problem — It Does Not Resolve It
European authorities increasingly distinguish between statelessness and cases in which nationality simply remains unidentified.
The EU Agency for Asylum’s Practical Guide on Nationality expressly examines nationality and statelessness as distinct legal concepts with practical consequences for administrative decision-making.
This distinction must be preserved.
A person whose nationality is recorded as unknown is not automatically stateless.
There may be several explanations:
the person may possess a nationality but lack documentary evidence;
the competent authorities may dispute the evidence;
civil-status documents may be incomplete;
parentage may not have been recognised correctly;
different countries may apply conflicting rules;
or the person may in fact satisfy the international definition of a stateless person.
Consequently, “nationality unknown” should represent the beginning of the investigation, not its conclusion.
Where the category remains unchanged for years, particularly in the case of a child, a legitimate question arises:
Which authority is responsible for actually determining what the child’s legal status is?
Children Expose the Weakness of Fragmented Nationality Systems
Nationality law normally assumes that a child can be connected to a State through established legal facts:
birth,
parentage,
territory,
registration,
or nationality of the parents.
International families can expose the weakness of that assumption.
Imagine that:
one country requires recognition of paternity;
another requires a particular civil-status document;
the mother’s identity has been recorded differently in different jurisdictions;
a consulate refuses to perform a procedure that can only be completed in the country of origin;
and the country where the child actually lives considers foreign nationality theoretically possible and therefore declines to recognise statelessness.
Each institution may be able to defend its decision under its own procedural rules.
Yet the combined result can be a child with no functioning nationality at all.
This is precisely the sort of transnational legal gap that conventional nationality legislation struggles to address.
No individual rule necessarily appears unlawful.
The failure emerges from the interaction between the rules.
The Difference Between De Jure and Practical Statelessness
Legal precision remains essential.
Under international law, a stateless person is generally someone who is not considered a national by any State under the operation of its law.
That is a demanding legal test.
It cannot simply be replaced with the argument:
“The child has no passport, therefore the child is stateless.”
Nor does an administrative designation such as nationality unresolved automatically establish statelessness.
But the opposite simplification is equally problematic.
A government should not be able indefinitely to answer:
“Perhaps another country considers this child its citizen.”
At some point, theoretical nationality must be tested against the applicable foreign nationality law and the child’s actual civil-status circumstances.
If nationality exists, it should be identifiable.
If it does not exist, statelessness should be recognised.
And if uncertainty remains, there must be a procedure capable of reaching a legally reasoned conclusion.
Article 8 ECHR May Matter Even Without a Right to Citizenship
This is where Article 8 of the European Convention becomes particularly interesting.
The ECtHR’s nationality jurisprudence examines not simply citizenship legislation but the consequences of unresolved nationality questions for private life and identity.
The Court also considers procedural safeguards, access to judicial review and whether authorities acted diligently and without excessive delay when nationality decisions seriously affected an individual’s status.
For children, uncertainty concerning the ability to acquire nationality through a parent has also been treated as potentially affecting the formation of personal identity.
This does not transform Article 8 into a European citizenship provision.
It does something subtler.
It places limits on the idea that nationality questions can remain administratively unresolved without legal consequences.
The Emerging European Principle
The European development can therefore be expressed cautiously:
Europe is moving toward treating prolonged unresolved nationality—particularly childhood statelessness—not merely as an immigration classification problem but as a question of legal identity, procedural effectiveness and fundamental rights.
The Council of Europe’s 2026 work reinforces this direction by concentrating specifically on child-friendly nationality and statelessness-determination procedures and access to justice.
This evolution is important because many of Europe’s most difficult nationality cases do not arise because legislation expressly deprives a child of citizenship.
They arise because several legal systems interact without any institution accepting final responsibility for the result.
A Question European Legal Systems Must Eventually Answer
The essential question is therefore no longer simply:
“Which nationality might this child theoretically possess?”
The more important question is:
“Which authority will finally determine the child’s nationality when every theoretical route has failed in practice?”
A legal system cannot eliminate a legal problem merely by classifying it as unresolved.
“Unknown nationality” may be an appropriate temporary administrative description.
It should not become a permanent legal status.
For a child growing up in Europe, legal identity cannot reasonably remain an unanswered question throughout childhood.
And European law is increasingly beginning to recognise exactly that.