Audiencia Provincial de Guipúzcoa

Parties (including notable third parties)

Matilde (the mother, acting on behalf of her minor daughter) and Raimunda (the minor child) (The Applicant); General Administration of the State (Ministry of Justice, General Directorate of Registries and Notaries) (The Respondent)

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Summary of Facts

The Applicant is a minor child who was born in 2015 in Agadir, Morocco, to a Cameroonian mother during her migratory journey to Europe. No birth certificate was issued as the mother was unable to register the birth with any authority. In 2018, the Applicant and her mother arrived irregularly by boat to the southern coast of Spain before later settling in San Sebastián.

The Applicant’s mother requested that the Applicant obtain nationality from the three countries to which she had a connection: Cameroon as her mother's country of origin, Morocco as her country of birth, and Spain as her country of residence. A request to the Cameroonian Embassy in Spain to register the birth and acknowledge the Applicant's nationality by descent was rejected on the basis that she was not born in Spain. The Embassy directed the matter to the Cameroonian Embassy in Morocco or the Ministry of Justice in Cameroon, which were requirements that were impossible to fulfil as the Applicant could not travel without a passport.

The mother also requested that the Spanish Civil Registry in San Sebastián register the Applicant's birth and recognise her Spanish nationality by presumption. The Civil Registry denied both requests, refusing to register the birth on the ground that it did not occur in Spanish territory and declining to recognise Spanish nationality because it considered the Applicant to be Cameroonian by descent. As a result of the lack of nationality and identification documents, the Applicant suffered significant consequences: although the mother was granted a residence permit, the Applicant was denied one; she could not be registered in the municipal register, a prerequisite for accessing public services and benefits; and she was unable to fully exercise fundamental rights such as education and healthcare.

The mother appealed the administrative decision denying the Applicant's nationality before the Civil Courts. On 24 November 2021, the Court of First Instance No 5 of San Sebastián upheld the claim, declaring the Applicant's Spanish nationality by origin and ordering the registration of her birth. The Spanish Ministry of Justice (representing the General Directorate of Registries and Notaries) and the Public Prosecutor's Office appealed the decision to the Provincial Court of Gipuzkoa (Audiencia Provincial de Gipuzkoa, Section 2).

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Legal Arguments

Legal Arguments by the Applicant:

• The child's statelessness violated Article 7 of the Convention on the Rights of the Child, which guarantees every child the right to acquire a nationality.
• Statelessness also violated fundamental rights under the Spanish Constitution, including the right to nationality, respect for private and family life, education, and the development of personality and dignity.
• Article 17(1)(c) of the Civil Code (which grants Spanish nationality to children born in Spain to stateless parents or parents whose national laws do not confer nationality) must be interpreted in light of international treaties such as the Convention on the Rights of the Child and the European Convention on Human Rights, as well as European Court of Human Rights jurisprudence, in order to prevent statelessness.
• The principle of the best interests of the child required Spain to recognise the child's Spanish nationality to prevent her from remaining in a situation where her fundamental rights were violated.

Legal Arguments by the Respondent:

• The requirements of Article 17(1)(c) of the Civil Code were not met because the child was born in Morocco and the mother's identity was known.
• Spain was not obliged under any international treaty to recognise a child born in Morocco as a Spanish national; statelessness alone did not entitle the child to Spanish nationality by origin where domestic legal requirements were not satisfied.
• The child's fundamental rights had not been infringed, as the non-recognition of Spanish nationality did not constitute such an infringement. Under the Spanish Constitution, foreigners enjoy the same public freedoms as nationals, as provided by treaties and law.

Outcome

On the Statelessness of the Child

The Court of Appeal upheld the First Instance Court's conclusion that the child was stateless, a finding supported by an interpretation provided by a lead expert of the UNHCR, which was produced as evidence. The Government of Spain did not challenge this conclusion on appeal. Applying the definition under Article 1(1) of the 1954 Convention, the Court found that the child was not recognised as a national by either Cameroon or Morocco. Cameroon refused to recognise her nationality by descent, requiring additional procedures that were impossible to fulfil as the child could not travel without a passport. Morocco, where the child was born, does not grant nationality by birth (jus soli), and the specific circumstances of the birth could not be proven. Accordingly, the child was stateless by birth.

The Court applied a broad interpretation of Article 17(1)(c) of the Civil Code, which grants Spanish nationality to children born in Spain to stateless parents or parents unable to pass on their nationality. The Court reasoned that this provision must be interpreted extensively because it constitutes the only mechanism allowing compliance with international treaties to which Spain is a party, while respecting and effectively implementing the best interests of the child.

On the Best Interests of the Child

The Court grounded its decision in two key principles of public international law. First, the principle of the best interests of the child, enshrined in Article 3(1) of the Convention on the Rights of the Child, requires that this consideration govern any decision affecting a child. Second, Article 7 of the Convention on the Rights of the Child guarantees every child the right to be registered after birth and to acquire a nationality, imposing an obligation on State parties to ensure these rights particularly where the child would otherwise be stateless.

The Court appreciated that the mother had made a genuine effort to remove administrative and bureaucratic obstacles in seeking recognition of the child's Cameroonian nationality, which proved impossible. Additionally, the child's first official known place of stay was Spain. Recognising the child as a Spanish national was therefore the only mechanism to comply with Spain's international treaty obligations and effectively uphold the best interests of the child.

The Court found that allowing the child to remain stateless would place her in a situation of inequality compared to other minors, resulting in a significant reduction of her basic and fundamental rights. It was proven that the child's statelessness jeopardised her fundamental rights, including access to education and public health services. The Court declared that the child held Spanish nationality ‘by birth’ and that her Spanish nationality and birth must be registered by the Spanish authorities.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child	Articles 3(1), 7(1)
International	1954 Convention Relating to the Status of Stateless Persons	Article 1(1)
Domestic	Civil Code and Law No 51/1982 (Amendment)	Article 17(1)(c)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Cristina Manzanedo and Jose Alberto Navarro, 'Spanish Court Recognises the Spanish Nationality of a Stateless "Invisible Child" in Order to Remedy a Violation of Her Human Rights' (2022) 4(2) Statelessness & Citizenship Review 316.

• The authors argue that this case is significant because it ‘raise[s] awareness about the reality of the “invisible children”, how they become stateless due to the particular circumstances of their births during their mothers' migratory journeys, and the consequent breaches of their fundamental and basic rights’ (page 321). It also shows the importance of authorities correctly identifying these situations to effectively protect these children's human rights.
• The commentary segment of the article emphasises that the rulings are unprecedented and correctly focused on principles and provisions of public international law: the best interests of the child and Article 7 of the CRC, which ‘strengthen the legal foundations to apply a broad interpretation of the national law regulating access to nationality in order to remedy the statelessness of the child’ (page 322).