The Promise of Durable Solutions
The most effortless approach to granting nationality at birth to children born in the territory of a country is by the jus soli principle. This principle rarely has been used in most European countries for centuries, but more recently an increasing number of European states have introduced limited and/or conditional jus soli provisions in their law (Reda 2014). For instance, Belgium, Finland, France, Greece, Italy, the Netherlands, Spain, and the United Kingdom have strong jus soli provisions, where children born to foreign parents can acquire nationality quite easily—in France, for example, with a five-year residency condition (Brubaker 1992). Some other 17 European states have safeguards allowing otherwise stateless children to acquire nationality when they are born in the territory.
In Germany, a specific legal act in 1977 transposed the provisions of the 1961 Convention into national law (instead of amending the Citizenship Act), including safeguards for otherwise stateless children born in the country (Brubaker 1992). Germany introduced limited jus soli provisions in 2000 in its nationality law, requiring that parents have eight years of lawful residency in Germany in order for their children to receive jus soli German nationality at birth. Still, gaps and problems remain within the European landscape. For example, in Norway, Cyprus, Albania, and Romania, there are no safeguards at all for otherwise stateless children born in these countries (Reda 2014).
Italian law includes a seemingly generous jus soli provision that grants nationality to all children born in the country who would otherwise be stateless. But, in practice, this procedure hardly applies to stateless Roma children, as their birth is often not properly registered and it is difficult to establish—especially with the lack of clear procedural guidance and safeguards. Jus soli remains an effective way to confer nationality in an inclusive manner (Ricucci 2005). It is a means of strengthening prevention measures against statelessness at birth and, in this way, it could constitute a durable solution to the problem of statelessness.
Introducing jus soli-related provisions and safeguards also reflects the way in which European societies have changed in recent decades, and the important role immigration now plays not only in Italy but also in most European countries (ENS 2013, 2014a, b). Although jus soli sums up the potential for a durable solution, it would be risky to consider it in itself as the ultimate solution to end statelessness. Either conditional or unconditional jus soli provisions—or their implementation in state practice—often leave gaps that create or maintain statelessness situations at birth.
As previously stated, in Italy a significant improvement to reduce statelessness has been through allowing the acquisition of Italian nationality as an individual turns 18. Introduced with the Decree Law 69/2013, the provision establishes an obligation for Italian authorities to inform all children registered at birth about their right to Italian citizenship and the procedure to obtain it. Nevertheless, a substantial lack of information still persists with regard to the routes available to be granted Italian citizenship at birth. This problem is further refined in practice. Several Anagrafe (i.e., Population Registration Offices) incorrectly record children with the nationality of the parents on the basis of their parents’ alleged nationality or their reported place of birth.
By law, children born in an Italian territory whose parents are both stateless are entitled to automatic acquisition of Italian nationality at birth. This relevant safeguard might constitute an effective tool in preventing situations of childhood statelessness. Italian legislation grants Italian nationality at birth to children who do not receive the citizenship of their parents in accordance with the laws of their country of origin (Reda 2014). This provision, however, only covers those minors whose parents come from a country where the laws do not permit them to confer nationality when their child is born abroad. For instance, in the cases of Cuba, Paraguay, and Chile, which adhere only to the jus soli criterion.
Nevertheless, in practice there are situations where the transmission of nationality jus sanguinis in accordance with the laws of parents’ country of origin is particularly burdensome because of a number of administrative formalities—for example, obstacles in the registration of children at the consulate or difficulties in gathering the required documentation (e.g., passport or an Italian permit of stay). Accordingly, these children are confronted by a serious risk of becoming stateless, because in such cases they also are unable to obtain citizenship automatically at birth under Italian law (Capesciotti 2014).
Despite the existence of a reasonably strong legal framework in Italy, stateless children remain invisible and unaccounted for (ENS 2015). In search of durable solutions, some key points should be taken into account, because little attention has been paid thus far to the roles of local actors and their effects on the conditions that produce or reduce the incidence of child statelessness (Frelick and Lynch 2005; Kerber 2007; Goris et al.
2009). These local actors include mothers, fathers, children, kinship networks, local authorities, midwives, healthcare practitioners, employers, brokers, and traffickers. The decisive actions of such actors in regards to birth registration and documented or undocumented migration may contribute to outcomes that impact a child’s nationality or statelessness (Milbrandt 2011).
Clearly, the Italian government should take responsibility for implementing and ameliorating existing national and international legislation. Still, durable solutions should be devised in partnership and accordance with local actors, considering interpersonal, cultural, financial, and political constraints. With particular reference to stateless Roma children in Italy, whether a child’s birth is registered depends on a number of factors, some of which are well understood (e.g., cost, location of registration facility, level of literacy, and language required to complete forms). Other issues also should be taken into account with regard to specific communities and ethnic and religious groups. For instance, birth registration should be affordable not only for migrant communities (Cody and Plan International 2009), but also there has to be linguistically appropriate access to the birth registration process (Bhabha 2011).
Within the context of Roma communities residing in Italy specifi- cally—but also more broadly—it is important to consider that some mothers or fathers may intentionally decide not to register their child. In doing so, it may be perceived by others that these parents, in not obtaining official documentation for the child, are negligent or engaged in illegal activities or are themselves victims of criminal enterprises dealing in the sale of forged identity documents, child traffickers, smugglers, and the like. This perception perpetuates stereotypes and incorrect assumptions, especially with regard to Roma communities (Sigona 2005).
An ethnocentric approach may take for granted that the primary desire of migrant parents for their children, like most other parents, is legal legitimacy and the benefits that go with that—a passport, healthcare, access to opportunities (e.g., public school, social welfare, legitimate employment, and property ownership). Yet, it should be considered that some migrant parents associate documentation with certain risks or limitations. At times, migrant parents do not perceive any benefits associated with birth registration (Crawley et al. 2004; Crawley and Rowlands 2007; UNICEF 2013 a, b).
Considering how immigration is dealt with and perceived within the Italian context (Policek 2014), for many parents being undocumented may be perceived as a possible protection against state surveillance, control, and harassment (Cohen 2006). Lack of documentation also could be perceived as a benefit when children are involved in child labor so that they can contribute to household income. In Italy, this seems to be the case, especially within the Chinese community (Policek 2014). If children have no documentation, their status as minors cannot be confirmed, and their parents cannot be traced and thus prosecuted.
Within some Eastern Asian communities in Italy, parental decision making about birth registration may depend on the child’s age. Registering may be postponed until after a period of waiting to ensure that a child survives or after the child’s naming ceremony. Other migrant communities, especially if waiting to obtain the status of political refugee, may wait until an outcome of registration becomes tangible (Ricucci 2005). This could be the case, for instance, when enrolling a child in school or seeking to take a child out of the country.