discriminatory practices, whether ethnic, religious or gender-based. In all of these cases, children suffer unnecessarily.
Some countries make it impossible for stateless parents or parents who can’t prove their identity, to register the birth of their children, which is the main reason why stateless children can’t acquire an identity document or passport - a basic tool to access fundamental rights such as healthcare and education. The consequences of this situation are devastating.
The solution to the problem and the case of Spain
The only positive side of this issue is that it’s a completely solvable problem.
The conventions of the United Nations (UN) – the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness – provide a clear legal framework to define and address this issue. By establishing safeguards within national legislations governments could ensure that all children born within the territory of a country have the right to acquire a nationality if otherwise stateless.
However, despite the existence of numerous international instruments and national and regional treaties, there still remains much to be done in practice. Many States have not yet ratified the UN conventions, while others that have, fail to fulfil the established obligations. The lack of a mechanism to monitor the compliance and the lack of a common process to determine the statelessness status is complicating the protection of these people and delaying the solution at an European and global level.
In the Spanish case, the national legislation has sufficient guarantees so that a baby born on its territories can acquire Spanish nationality if otherwise stateless. But although Spain is one of the first and few countries in the world that has a specific legislative act to determine statelessness, we can still find major shortcomings and difficulties in the process. Having a regulation determining the status of stateless persons, approved by the Royal Decree 865/2001 of 20 July, unfortunately, doesn’t mean that this procedure is effective or implemented efficiently. Despite the numerous recommendations and requests by other States and by non-governmental organizations, Spain, being a State Party to the 1954 Convention, has not yet ratified the 1961 Convention or the 1997 European Convention on Nationality.
What does this mean for Mohammed?
If we look into the details of the Spanish legal framework, specifically Article 13.4 of the Spanish Constitution, stateless persons have the right to benefit from the right to seek asylum in Spain. This right is regulated by the Organic Law 12/2009, which, seven years after its approval, has still no regulations. This means a different handling of the asylum applications of stateless persons and refugees, entailing incompatibilities between the different laws that only end up harming the applicants. When Amira arrived to Spain, she should have been able to request the recognition of the stateless status for her son, but the current legislation excludes this type of applications at the asylum offices at the borders' crossing points. This is clearly a violation of the rights of stateless people, who, like Amira and her son, arrive to Ceuta or Melilla. In addition, and although the Royal Decree states that the applications for the determination of the stateless status have to be resolved within three months, in practice the process can end up lasting more than two years, thereby increasing the risk of vulnerability and social exclusion of the applicant and his or her family. Unlike asylum seekers, who are allowed to work in Spain six months after submitting their application, even if their case haven’t been resolved yet, people who have applied for the determination of their stateless status will not have the right to work until their case is resolved, and that can be two years or more after their arrival.
To avoid the emergence of a new population of stateless children among the refugees who are trying to reach Europe or neighbouring countries of conflict 