The Children of Irregular Migrants: A Stateless Generation?

THE CHILDREN OF IRREGULAR MIGRANTS: A STATELESS GENERATION? Laura van Waas* Abstract Irregular migration is on the rise. In countries around the world, the – increasingly permanent – presence of large numbers of unauthorised immigrants is putting pressure on immigration and citizenship policies as a balance is sought between inclusion and exclusion. Neither large-scale regularisation or naturalisation, nor deportation, offer an appropriate solution for much of this group, so they remain – irregularly and indefinitely. Meanwhile, life goes on and families expand. Yet the arrival of a new generation, born to irregular migrants on the territory of the host State, is often overlooked by official government records. Unable to access birth registration for a number of reasons, these children miss out on that crucial evidence of their relationship with their parents and the State. Without proof of these ties, the child will have difficulty claiming the nationality to which he is entitled. This article explores how the vulnerability of irregular migrants’ children to a lack of birth registration could herald the arrival of a whole generation of stateless children. 1. INtRODUCtION ‘today we protest and tomorrow we vote’. This was the rally cry of the more than a million immigrants who joined the marches in cities across the United States on International Workers Day, 2006.1 The message was clear: it was time for them to be recognised as valuable and valued members of american society by granting them * 1 Laura van Waas, LLM., is a junior researcher in public international law at tilburg University, the Netherlands. She is writing a Ph.D. thesis on statelessness and from May to September 2006 worked on a project for Plan International that looked more closely at the link between birth registration and statelessness in the context of irregular migration through case studies of Thailand and the Dominican Republic. See Van Waas, L., Is permanent illegality inevitable? The challenges to ensuring birth registration and the right to a nationality for the children of irregular migrants – Thailand and the Dominican Republic, Plan International, Woking, November 2006. bbC News, LA feels migrant day of action, 2 May 2006, http://news.bbc.co.uk/2/hi/americas/4963918. stm (accessed 30 august 2006). Netherlands Quarterly of Human Rights, Vol. 25/3, 437–458, 2007. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 437 Laura van Waas the right to truly participate, through US citizenship. While policy on conferral of nationality to newcomers is always controversial, this request was doubly so. For the immigrants who gathered in the street, demanding their rights, were irregular migrants. They are in the country in breach of immigration laws, causing many people to question whether they are really in a position to be making demands. Yet their plea cannot be dismissed outright. by law they are ‘the illegals’, but the fact remains that they have been present on US soil for considerable time, contributing to the nation’s economy and even culture. What is more, by sheer weight of numbers they are hard to ignore: there are currently an estimated 11 million irregular migrants residing in the United States.2 These undeniable facts are pushing the US government to review its immigration and naturalisation policy in a bid to deal with this large, unauthorised presence – one way, or another. Meanwhile, irregular migration is carrying an increasing number of people across international boundaries, putting a strain on immigration and citizenship policies in countries around the world. Further complicating the issue is the realisation that irregular migration involves more than just the individuals who choose or are forced to enter into or remain in a country irregularly. to these men and women are born a generation of children, whose future in the receiving State is far from certain. What, for example, of the estimated three million US-born children of irregular migrants currently in the United States?3 While new restrictions that are being introduced into a number of domestic nationality acts mean that this group is already at an increased risk to statelessness under operation of the law, there is another dimension to the phenomenon of irregular migration that seriously jeopardises the actual acquisition of a nationality even where the child is entitled under the law. That is: the lack of access to birth registration. The significance of birth registration for effectively claiming the nationality to which a child is entitled is now well recognised. In order to prevent statelessness, it is therefore of paramount importance that every child is registered at birth and a birth certificate issued. However, there are many obstacles in the way of ensuring that children born to irregular migrants are registered at birth: problems of law, logistics and attitudes. In discussing these hindrances, this article will uncover the reasons why the children of irregular migrants are one of the groups at greatest risk to nonregistration of birth. It is this observation that has lead to the submission upon which 2 3 438 Estimates vary. a March 2005 Current Population Survey carried out by the Census bureau placed the number of illegal immigrants as between 9.6 and 9.8 million. However, it was admitted that this survey would ‘miss’ some 10 percent of illegal immigrants so when this was added to the figures, the total estimate came to 11 million. See Camarota, S., Immigrants at mid-decade. A snapshot of America’s foreign-born population in 2005, Centre for Immigration Studies, December 2005. News sources also reported estimates of 11 million or more illegal immigrants. CNN News, Thousands march for immigrant rights, 2 May 2006, www.cnn.com/2006/US/05/01/immigrant.day/index.html (accessed 30 august 2006). Idem. Intersentia The Children of Irregular Migrants: a Stateless generation? this article is founded: that a stateless generation may be born to irregular migrants across the globe. before embarking on the investigation of this hypothesis, it is worth considering for a moment what the consequences would be of proving it to be well-founded. Even if a generation of stateless children is being created by nation-States’ reactions to irregular migration, is this really a cause for concern? The answer, most certainly, is yes. In our well-ordered world of today the possession of a nationality – a legal bond of affiliation with a particular country – is the norm, so it is for good reason that the right to a nationality has been espoused in numerous human rights instruments.4 Without it the stateless become ‘outcasts from the global political system of States’5 or, put even more succinctly, ‘legal ghosts’.6 They experience difficulties accessing fundamental rights and services, are often left without any identity documents, are unable to travel and may be subject to arbitrary or long-term detention.7 Moreover, the stateless are much more vulnerable to marginalisation, discrimination and insecurity. and if the rights-based approach does not convince States that something must be done to prevent more individuals from being exposed to the plight of the stateless, there is another forceful argument. a link has been traced between the individual insecurity experienced by stateless persons and collective or international insecurity. Voiceless and disempowered, unable to access the regular processes of governance, a stateless population on the territory of a nation-State may prove to be a destabilising factor. Citizenship disputes and statelessness have led not only to mass population 4 5 6 7 The right to a nationality can be found in article 15 of the Universal Declaration of Human Rights, ga Res. 217a (III), UN Doc. a/810, 1948, at 71 (1948); article 24 of the International Covenant on Civil and Political Rights, 16 December 1966, 999 United Nations Treaty Series 171; S. Exec. Doc. E, 95–2, 1978; article 7 of the Convention on the Rights of the Child, 20 November 1989, 1577 United Nations Treaty Series 3; article 29 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, ga Res. 45/158, 18 December 1990, 2003; article 20 of the american Convention on Human Rights, 21 November 1969, O.a.S.t.S. No. 36; 1144 United Nations Treaty Series 143; article 6 of the african Charter on the Rights and Welfare of the Child, OaU Doc. Cab/LEg/67/3 rev. 5, 27 June 1981, 1986; and article 7 of the Covenant on the Rights of the Child in Islam, OIC/9-IggE/HRI/2004/Rep.Final. United Nations High Commissioner for Refugees, The problem of statelessness has become a live issue again, UNHCR Department of International Protection, geneva, 2001, www.unhcr.org/ protect/PROtECtION/3b837ec14.html (accessed 30 July 2007). United Nations High Commissioner for Refugees, The World’s Stateless People. Questions and Answers, UNHCR Media Relations and Public Information Service, geneva, 2004, p. 5. goodwin gill, g., ‘The rights of refugees and stateless persons’, in: Saksena, K.P. (ed.), Human rights perspectives and challenges (in 1900’s and beyond), Lancers books, New Delhi, 1994, p. 379; batchelor, C., ‘The International Legal Framework Concerning Statelessness and access for Stateless Persons’, European Union Seminar on the Content and Scope of International Protection: Panel 1 – Legal basis of international protection, Madrid, 2002, p. 4; United Nations High Commissioner for Refugees and the Inter-Parliamentary Union, Nationality and Statelessness: A Handbook for Parliamentarians, UNHCR, geneva, 2005. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 439 Laura van Waas movements but have contributed to internal and even international conflicts.8 In sum there is enough cause for exploring and illuminating any root causes of the troublesome phenomenon of statelessness. 2. tHE ‘IRREgULaR MIgRaNt’ Who is the ‘irregular migrant’ whose children – it is proposed here – are at risk to statelessness? He is perhaps best known as the illegal immigrant – the preferred term of domestic political rhetoric and the mass media alike. Sensitive to the negative connotation of this expression, the international community adopted the less biased labels undocumented or non-documented migrant and irregular migrant in its place.9 Each of these expressions actually refers to the same basic situation: the presence of a non-national on the territory of a State, in contravention of domestic immigration laws.10 This includes both individuals who have entered the country unlawfully as well as persons who had permission to cross into State territory but have since breached the conditions of stay, whereby their presence has become irregular.11 This article follows the international community’s approach by sticking to the non-stigmatising term ‘irregular migrant’.12 Since the status of being an irregular migrant is thus dependent on the immigration laws of the receiving State, and immigration laws vary from one country to another, so too do the characteristics of the irregular migrant. For example, not all countries have formal asylum laws, providing for refugee status determination and an accompanying (temporary) legal residence status for those who qualify for protection. While these countries will often tolerate the presence of refugees, agreeing not to enforce immigration laws against them and commit refoulement, the individuals are not issued any form of residence permit and remain for all intents and purposes irregular 8 9 10 11 12 440 Sokoloff, C., Denial of Citizenship: A challenge to human security, Prepared for the advisory board on Human Security, New York, February 2005. See for example the International Convention on the Rights of all Migrant Workers and Members of Their Families, ga Res. 45/158, 18 December 1990, 2003. Lyon, b., ‘New International Human Rights Standards on Unauthorised Immigrant Workers Rights: Seizing an Opportunity to Pull governments Out of the Shadows’, in: bayefsky, a. (ed.), Human Rights and Refugees, Internally Displaced Persons and Migrant Workers, Koninklijke brill, Leiden, 2006, p. 553. a common example of the latter is the case in which an individual enters a State legitimately on a tourist visa, but stays beyond the expiry date of that visa, rendering his continued presence in the State unlawful. This has been dubbed ‘overstaying’. It should be noted that acting in violation of immigration law is not necessarily equivalent to committing a criminal act. Illegal entry was criminalised in the United States in 1929. Meyers, E., International Immigration Policy: A theoretical and comparative analysis, Palgrave, New York, 2004, p. 37. However, this is still not the case for example in the Netherlands according to correspondence with the Netherlands Immigration and Naturalisation Service, Department of Communication, in May 2006. Unless citing directly from a publication where one of its synonyms is used. Intersentia The Children of Irregular Migrants: a Stateless generation? migrants.13 Meanwhile, similarly situated persons in another State may be officially recognised under the domestic refugee law and granted legal permission to reside, extracting them from the population of irregular migrants. This type of variation in immigration laws means that the profile of irregular migrants – the underlying motives for migration, the method of entry into the receiving State, the deportability, living conditions and other details – differ from one person to another and between States.14 That being said, there are a number of discernable trends in the irregular migrant demographic which are significant here. In general, the present-day flow of irregular migrants is very different in composition to that which traditional stereotypes have imprinted on our minds. These myths must be dispelled in favour of a true rendition of irregular migration, for it is against this background that the problem of a new, stateless generation will be painted. Thus, gone are the days – if they ever existed – when migration was dominated by men, who travelled alone in order to earn money to support their families back home. In reality, there have always been female migrants, travelling either on their own or as dependents. In recent decades their numbers have been on the increase causing reports of the ‘feminisation of migration’ in a number of countries15 and overall it would seem that there is now a balance of gender in the world’s migrant population.16 The scales may even be tipped in favour of women when considering irregular migrants as they are more vulnerable to trafficking (a growing manifestation of irregular migration) and are often in higher demand in industries that tend to employ irregular migrants.17 Moreover, it is not unusual for whole families, 13 14 15 16 17 This is the situation in a number of asian and Middle Eastern countries that are not party to the 1951 Refugee Convention, such as India, Pakistan, Thailand, Indonesia, Syrian arab Republic, Saudi arabia, Kuwait and bahrain. These countries tolerate the presence of refugees so long as the international community provides the necessary humanitarian assistance and only until such time as repatriation or resettlement can be realised. Nor is asylum law uniformly implemented in the event of mass influxes of refugees, their status remaining irregular. See for the latest information on these – and other – States’ treatment of refugees, the relevant United Nations High Commissioner for Refugees, Country Operations Plans, accessible at: www.unhcr.org/protect/ PROtECtION/433a98932.html (accessed 30 august 2006). Thailand makes an interesting case in point as it is home to at least 17 different categories of persons whose presence in the State is officially illegal. This includes ‘persons fleeing fighting’ (refugees from neighbouring Myanmar who are currently warehoused in border camps), irregular migrant workers from Lao DPR, Cambodia and Myanmar, as well as numerous ethnic minority groups whose long-term presence in the country means that the term irregular migrant no longer really suffices. International Rescue Committee, Basic Information on Rights of Migrant Workers in Thailand, ICR, bangkok, 2006, p. 3. Report of the UN Secretary general, Violence against women, UN Doc. a/60/137, 21 July 2005, p. 3. United Nations Development Programme estimated in 2000 that 49 percent of international migrants are women and girls. International Organisation for Migration, World Migration Report 2005, Section 3 on ‘International migration data and statistics’, IOM, geneva, 2005, p. 381. among these industries are garment and textile manufacturing, the (domestic) service industry and sex work. See also Castles, S. and Davidson, a., Citizenship and Migration. Globalisation and the Politics of Belonging, Palgrave, basingstoke, 2000, pp. 58–59. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 441 Laura van Waas including women and children, to be involved in irregular migration – think of the large-scale population displacement involved in refugee flows.18 gone too are the illusions of a clear-cut divide between ‘economic migrants’ and persons seen to have a legitimate claim to the protection of the host State such as refugees. It has long been customary to refer to the former as illegal immigrants and consider them readily deportable, while assuming that the latter will qualify for protection under the asylum law of the host State, regularising their status. as mentioned, irregular migrants can in fact belong to either group and over time the distinction has become blurred by the facts and by an expanding concept of human security.19 Thus whatever the label used, a large group of irregular migrants appears in fact to be un-deportable. Moreover, it must be observed that many countries are either unable or unwilling to control immigration to such an extent that further irregular migration is eradicated. The inability can be explained in the virtually insurmountable challenge of patrolling vast lengths of international frontier to prevent the entry of unauthorised persons and the difficulty in combating well-organised informal international migration networks such as people-smuggling groups. The lack of will to fully commit to these tasks is related to the economic demand for irregular migrant labour that is evident in many receiving States.20 The presence of irregular migrants who are willing to take the unpopular 3D jobs – dirty, difficult and dangerous – can actually be a valuable asset to the national economy. This combination of factors means that the number of irregular migrants will continue to grow as those in refugee-like 18 19 20 442 as mentioned, refugees or persons in refugee-like situations are in some cases considered to be irregular migrants. UNHCR reports that 49 percent of refugees worldwide are female – the same proportion as among international migrants generally. See United Nations High Commissioner for Refugees, 2004 Global Refugee Trends, UNHCR, geneva, 2004, p. 5. There is a decline in the number of refugees but ‘the number of individuals in refugee-like situations has grown considerably’. Helton, a.C. and Jacobs, E., ‘What is forced migration?’, in: bayefsky (ed.), op.cit. (note 10), p. 3. One prudent example is the outflow of migrants from Myanmar into Thailand. While a comparatively small number of persons (140,000) fleeing violence and oppression in Myanmar are recognised as refugees (or at least ‘persons fleeing fighting’) in neighbouring Thailand, the total exodus is much greater (up to 1.5 million). The latter group are considered to be illegal migrant workers, but their motive for leaving Myanmar is almost indistinguishable from those who are considered as refugees. Moreover, due to the absence of a refugee law in Thailand, both the refugees and the illegal migrant workers from Myanmar belong to the irregular migrant population present on Thai soil. For more information see Caouette, t.M. and Pack, M.E., Pushing past the definitions: migration from Burma to Thailand, Refugees International and Open Society Institute, December 2002, available at: www.refugeesinternational.org/content/publication/detail/3074/ (accessed 18 august 2006); amnesty International, Thailand. The Plight of the Burmese Migrant Workers, June 2005, available at http://web.amnesty.org/library/pdf/aSa390012005ENgLISH/$File/aSa3900105. pdf (accessed 18 august 2006); and Women’s Commission for Refugee Women and Children, Abuse Without End: Burmese Refugee Women and Children at Risk of Trafficking, Women’s Commission, New York, 2006, available at: www.womenscommission.org/pdf/mm_traff.pdf (accessed 18 august 2006). Castles and Davidson, op.cit. (note 17), p. 73. Intersentia The Children of Irregular Migrants: a Stateless generation? situations remain un-deportable and host States continue to concede to the demand for 3I labour: inexpensive, imported and irregular. Finally, the foregoing clarifications of present-day irregular migration have overturned the assumption that it is a short-term phenomenon whereby the independent migrant has come to earn a ‘quick buck’ before voluntarily returning to his home (country) and family. In some cases the family unit has migrated together and life in the receiving State is a continuation of life at home (albeit often in very different circumstances).21 Thus as the family naturally expands, new offspring are born on the host territory. In other cases, a woman who has migrated alone or been trafficked across an international border may find a partner in the receiving State or discover that she must get married for her own protection due to her vulnerable position as an irregular migrant.22 as time moves on, irregular migrants – both male and female – may simply find a life partner and settle down. This also leads to the inevitable expansion of the family with children. The long-term nature of irregular migration is reinforced by the unwillingness of the host State to return irregular migrants to the country of origin – be it for humanitarian reasons (for example nonrefoulement)23 or due to economic motives (reliance on irregular migrant labour). Despite this long-term factual presence in the host State, it should be noted that these individuals will remain in a state of irregularity.24 So, while it is conceivable that an irregular migrant who spends no more than a few months or perhaps a couple of years in the host State may put off having or expanding a family until he has returned to his country of origin, this view cannot be upheld when the irregular migrant and his or her family reside in the receiving State indefinitely. One need only visit a ‘temporary shelter’ where a refugee population has been warehoused for ten years or more, to 21 22 23 24 Consider refugee communities or those in refugee-like situations. Such so-called ‘marriage for protection’ is a common occurrence among irregular migrants from Myanmar in Thailand. The husband may offer to pay off the debts to people smugglers that the woman incurred in the migration process or will simply provide a means of escape from the harassment that single women suffer in irregular migrant communities. Koetsawang, P., In Search of Sunlight. Burmese Migrant Workers in Thailand, Orchid Press, bangkok, 2001, pp. 97–98. This has led to so-called ‘warehousing’ of refugee populations, where the situation becomes protracted as their continuing presence is tolerated but their situation is not regularised, preventing them from accessing a range of rights. at the end of 2003, UNHCR put the number of protracted refugee situations worldwide at 38 and concluded that ‘the average duration of refugee situations, protracted or not, has increased: from 9 years in 1993 to 17 years in 2003’. United Nations High Commissioner for Refugees, Protracted refugee situations, UN Doc. EC/54/SC/CRP.14, 10 June 2004, p. 2. amnesty programmes are still exceptional and selective, regularising the stay of certain categories of irregular migrants and often providing only short-term residence permits, whereby the individual returns to irregularity again after the permit expires. Pinkerton, C., McLaughlan, g. and Salt, S., Sizing the illegally resident population in the UK, United Kingdom Home Office Online Report 58/04, Migration Research Unit, University College London, London, 2004. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 443 Laura van Waas witness the truth in this: there are babies, toddlers and young children aplenty.25 There is also evidence that the birth rates of irregular migrant mothers are higher than that of non-migrant or regular migrant mothers.26 The overall conclusion to be drawn from this overview of the irregular migrant demographic is that there are – and will continue to be – an increasing number of children born to (an increasing number of) irregular migrants on the territory of the receiving State. While it is possible to point out these general trends in the demographic of the irregular migrant, providing a more precise estimate of the scale of the matter is easier said than done. The lack of reliable statistics is a problem which is inherent to the issue of irregular migration: ‘due to its clandestine nature, (…) by definition, illegal immigration eludes registration and statistical coverage’.27 Irregular migrants often remain, by choice or necessity, invisible to the authorities of the receiving State. The ratio of regular to irregular migrants varies from one place to another, largely depending on the opportunities for legal migration which exist under the domestic immigration laws, so it is not possible to extrapolate a reliable figure from statistics on regular migration.28 However, over the years a number of countries have made attempts to measure the number of irregular immigrants on their territory using techniques such as an analysis of the information garnered from regularisation programmes or population surveys.29 It was one such study, conducted by the Census 25 26 27 28 29 444 UNHCR statistics on the demographic composition of populations of concern show that anywhere between 5 and 30 percent are children under the age of four. Upon brief inspection, the proportion of children under 4 (as well as those under 18) appears to be slightly higher in the camps that house protracted refugee populations. See United Nations High Commissioner for Refugees, 2004 Global Refugee Trends, UNHCR Population and geographical Data Section, geneva, 17 June 2005; and United Nations High Commissioner for Refugees, Protracted Refugee Situations, UN Doc. EC/54/ SC/CRP.14, 10 June 2004. In the United States it was estimated that irregular migrant mothers had on average 3.1 children as compared to an average of 2.6 children born to regular migrant mothers and 2 children born to US nationals (non-migrants). Camarota, op.cit. (note 2). Pinkerton, McLaughlan and Salt, op.cit. (note 24), at p. 3. In Europe the number of irregular migrants is estimated to be 10 percent of the figure for regular migration, whereas in asia it is admitted that there may be more irregular than regular migrants; Castles and Davidson, op.cit. (note 17), at pp. 71–72; and Meyers, op.cit. (note 11), at p. 3. The method of analysing data from amnesties is considered one of the most reliable means of estimating irregular migrant populations. Many countries have reached a kind of invisible breaking point at one time or another, where the population of irregular migrants was too large to ignore. One of the options is to implement a programme to regularise the status of such migrants by granting amnesty in the form of legal residence (either temporary or permanent). The United States adopted such a programme in 1986 which saw 2,685,000 irregular migrants apply for amnesty. The irony in waiting for a regularisation campaign to measure the number of irregular migrants in a country is that in doing so, the status of most of those individuals becomes regular and the figures become immediately outdated. For an overview of regularisation programmes as well as techniques used in several countries to calculate the population of irregular migrants, see Pinkerton, McLaughlan and Salt, op.cit. (note 24), at pp. 38–41. a similar irony is evident in efforts to deduce the number of irregular migrants from figures on arrests and deportations for once again this uncovers the number of persons who are no longer irregular migrants. Intersentia The Children of Irregular Migrants: a Stateless generation? bureau in the United States that yielded the estimate of 11 million irregular migrants on US soil as well as three million US-children of irregular migrants.30 Irregular entry into the European Union has been estimated at 500,000 new arrivals each year with over three million resident irregular immigrants.31 These statistics remain an imprecise result of a combination of empirical evidence, assumptions and guesswork.32 However, the figures do serve to illustrate that the overall scale of irregular migration is considerable and the number of children born to irregular migrants in receiving States is hefty enough to compel closer attention to the risks that they face in acquiring a nationality. Moreover, this number is expected to continue to rise for the foreseeable future. 3. NatIONaLItY attRIbUtION, bIRtH REgIStRatION aND StatELESSNESS The problem under the microscope here is the legal status of children who are born to irregular migrants within the borders of the host State and the question of how their parents’ irregular status affects their claim to a nationality. Over the past few decades, amendments to nationality acts have made it easier for migrant children to gain both the nationality of the parents and of the country of birth, reducing the risk of statelessness from a conflict of laws and in fact increasing the instance of dual nationality. Ius soli States now grant nationality under certain circumstances to children born abroad to one of their nationals. Meanwhile, countries that adhere to the ius sanguinis doctrine are increasingly introducing a ius soli element – conferring nationality to children born to certain categories of non-nationals on the territory of the State. The expansion of access to nationality and the convergence of the two doctrines on nationality attribution is by and large a reaction to the increased mobility of populations in the late 20th and early 21st centuries. However, a simultaneous and opposing development can also be traced in recent changes to nationality regulations: the restriction of access to nationality for particular groups. While the ius soli doctrine has been heralded by some as the ultimate answer to statelessness at birth,33 that pure, utopian, all-inclusive form appears to be under threat. Numerous countries that employ the ius soli doctrine for nationality attribution have introduced additional conditions that must be met in order for birthright nationality 30 31 32 33 Camarota, op.cit. (note 2). Meyers, op.cit. (note 11), at p. 2. Other examples of studies to calculate the irregular immigrant population, showing the variety of results achieved, can be found in Pinkerton, McLaughlan and Salt, op.cit. (note 24). The Independent Commission on International Humanitarian Issues has reportedly called for the adoption of an instrument that prescribes universal adherence to the ius soli doctrine; United Nations High Commissioner for Refugees, ‘Statelessness and citizenship’, in: The state of the world’s refugees – A humanitarian agenda, Oxford University Press, Oxford, 1997, p. 256. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 445 Laura van Waas to be assured. The principle group excluded in this manner is the children of irregular migrants because a particular (immigration) status is required of the parents if their children are to be granted nationality ius soli.34 Instead of gaining citizenship, these children inherit their parents’ immigration status with the somewhat bizarre result of them being labelled ‘irregular immigrants’ themselves, despite being born on the territory.35 a memorable expression of the underlying viewpoint is that ‘an illegal person cannot produce a legal person’.36 The irregular status will thereby be transmitted continuously from one generation to the next, resulting in so-called permanent illegality.37 Furthermore, host States are generally very much opposed to granting nationality to the children of refugees who are born on their soil.38 Ruling out birthright citizenship for the children of irregular migrants is in itself a development that increases their exposure to statelessness. Without a fallback provision, these children become reliant on the country of nationality of their parents for acquisition of nationality at birth. Conferral of nationality ius sanguinis to children born abroad is available under the legislation of most States. However, once again there is a troubling development that is heightening the risk of statelessness. a number of countries have introduced restrictions on the conferral of nationality ius sanguinis to consecutive generations that were born abroad in order to prevent the continuing transmission of nationality to persons who in reality no longer have any 34 35 36 37 38 446 For example, under the australian Citizenship act, 1948, a child will acquire nationality ius soli only where one of his parents is an australian citizen or a permanent resident. Children born to irregular migrants are therefore excluded from birthright citizenship. They may however apply for nationality on their tenth birthday if they have been resident on australian soil since their birth. Martin, D.a., ‘Citizenship in countries of immigration – Introduction’, in: aleinikoff, t.a. and Klusmeyer, D. (eds), From Migrants to Citizens. Membership in a changing world, brookings Institution Press, Washington, 2000, p. 43. The United States is a major exception here as it continues to uphold birthright citizenship as a blanket policy: ‘although customary exceptions to the ius soli rule exist (e.g. children born on foreign vessels, children of diplomatic personnel), birthright citizenship has been understood to extend to the native-born children of aliens who are in the country illegally or on a non-immigrant visa’. Schuck, P., ‘Immigration, refugee and citizenship law in the United States’, in: Horowitz, D. and Noiriel, g. (eds), Immigrants in two democracies. French and American Experience, New York University Press, New York, 1992, p. 348. See also aleinikoff, t.a., Between Principles and Politics: U.S. Citizenship Policy, in: aleinikoff and Klusmeyer (eds), op.cit. (note 34), pp. 123–128. Statement by Manuel E. Polanco, head of the Dominican army as cited by Human Rights Watch. This citation must be seen in the context of the question of citizenship of children of Haitian irregular immigrants, born on the soil of the Dominican Republic. These children are currently denied Dominican citizenship, despite a ius soli regime, thanks to a creative interpretation of the very limited exceptions to the ius soli rule. See Human Rights Watch, Illegal People: Haitians and Dominico-Haitians in the Dominican Republic, Vol. 14, No. 1, april 2002, pp. 22–23, available at: http://hrw.org/reports/2002/domrep/index.html#topOfPage (accessed 30 august 2006). Inter-american Commission on Human Rights, Report on the Situation of Human Rights in the Dominican Republic, Organisation of american States, OaE/Ser.L/V/II.104, Chapter IX. United Nations High Commissioner for Refugees, Refugee Children – Guidelines on Protection and Care, UNHCR, geneva, 1994; and United Nations Children’s Fund, Birth registration, right from the start, UNICEF Innocenti Research Centre, Florence, 2002. Intersentia The Children of Irregular Migrants: a Stateless generation? genuine connection with the State. This type of provision, found for example in the british Nationality act 1981, heightens the risk of statelessness, although it may be accompanied (as is the case in britain) with a fallback provision where the child would otherwise be rendered stateless.39 It must be concluded that due to the circumstances of their birth and the immigration status of their parents, the children of irregular migrants are somewhat more likely to be rendered stateless at birth due to a conflict of nationality laws. However, in the majority of cases the child should be entitled to claim nationality ius sanguinis. Domestic regulations on attribution of nationality at birth are only half of the story. In order to obtain a nationality, a child must not only qualify under the conditions set out in the law, he must also be able to prove his entitlement. This requires backing up assertions of birthplace or parentage with documentary evidence. and this is where birth registration comes in. birth registration is: The process by which a child’s birth is recorded in a civil register by the applicable government authority. This step provides the first legal recognition of a child and generally is required for the child to obtain a birth certificate.40 The information that is officially recorded and recognised by way of the birth registration process can be used to establish the child’s nationality. Thus birth registration, or rather the lack of it, is now recognised as a source of statelessness.41 While other forms of evidence may be accepted in lieu of a birth certificate, these can be difficult, expensive or impossible to obtain and can always be contested by government officials.42 The fact that birth registration is an act carried out by the government itself – the information already has the official stamp of approval – makes the birth certificate by far the most effective tool for ensuring that nationality is conferred on the child. Moreover, it has been suggested that a birth certificate is 39 40 41 42 See Information leaflet bN4 on the british Nationality act 1981, Children born outside the United Kingdom, issued by the Home Office, 2002. The ‘applicable authority’ is the State within whose jurisdiction the child is born. todres, J., ‘birth registration: an essential first step toward ensuring the rights of all children’, Human Rights Brief, Vol. 10, No. 3, 2003, available at: www.wcl.american.edu/hrbrief/10/3birth.cfm (accessed 30 august 2006). United Nations High Commissioner for Refugees, Information and accession package: the 1954 Convention relating to the status of stateless persons and the 1961 Convention on the reduction of statelessness, UNHCR, geneva, 1999, p. 3; batchelor, loc.cit. (note 7), at p. 4; Lynch, M., Lives on hold: The human cost of statelessness, Refugees International, Washington, 2005, p. 5; and United Nations High Commissioner for Refugees and the Inter-Parliamentary Union, Nationality and Statelessness: A Handbook for Parliamentarians, UNHCR, geneva, 2005, p. 31. For example DNa testing can be used as evidence of parentage but this can be prohibitively expensive and hospital medical records may be used as evidence of place and date of birth, but these are unavailable if the child is born at home and the authenticity of the information could be challenged by the State. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 447 Laura van Waas particularly vital in order to claim nationality ius sanguinis which most children of irregular migrants will have to do to avoid statelessness.43 The importance of birth registration has long been recognised by the international community and it has been included as a fundamental human right in both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.44 In both cases this right is housed in the same article that promulgates the right to acquire a nationality, although the role of birth registration in nationality matters may not have been fully appreciated at the time. These rights share the same breath in international instruments because they are both seen as special measures that help to protect the child in his vulnerable status as a minor, for example by reducing the risk of exposure to trafficking or other exploitation.45 More recently however, the intrinsic connection between the official registration of a birth and the ability to claim a nationality has become firmly accepted. With this in mind, international organisations, Non-governmental Organisations (NgOs) and human rights advocates trying to pre-empt nationality disputes and prevent statelessness are increasingly using the call for universal birth registration as a tool for addressing the – often politically delicate – issue of statelessness.46 The child will not necessarily be eligible for the nationality of the country that is obliged to provide him with birth certification, but a birth certificate will ensure supporting evidence for any claim to entitlement.47 The right of ‘every child’ to have his birth registered is just that: a right of every child. The general prohibition of discrimination in the enjoyment of human rights also applies to birth registration, meaning that access to birth registration must be ‘available to all children – including asylum-seeking, refugee and migrant children – 43 44 45 46 47 448 Miller, M., Birth Registration: statelessness and other repercussions for unregistered children, 3rd European Conference on Nationality of the Council of Europe, Council of Europe, Strasbourg, 2004, p. 5. article 24 of the International Covenant on Civil and Political Rights (ICCPR), supra note 4, states that ‘Every child shall be registered immediately after birth and shall have a name. (…) Every child shall have the right to acquire a nationality’. article 7 of the Convention on the Rights of the Child (CRC), supra note 4, is formulated similarly. Human Rights Committee, CCPR General Comment No. 17: Rights of the Child (Art. 24), 7 april 1994, at para. 7, available at: www.ohchr.org/english/bodies/hrc/comments.htm (accessed 30 July 2007). The concluding observations of the Committee on the Rights of the Child have called for an improvement in birth registration systems and promoted accession to the international statelessness conventions in the same breath. See for example Syrian arab Republic, UN Doc. CRC/C/15/add.70, 24 January 1997, at para. 15; Djibouti, UN Doc. CRC/C/15/add.131, 28 June 2000, at para. 31; and Canada, UN Doc. CRC/C/15/add.215, 27 October 2003, at para. 27. Moreover, coupled to the birth registration process there must be a system in place that is designed to ‘fulfil his or her right to acquire (…) a nationality’. United Nations general assembly Resolution, A world fit for children, twenty-Seventh Special Session of the ga, UN Doc. a/RES/S-72/2, 11 October 2002, at para. 44(1). Intersentia The Children of Irregular Migrants: a Stateless generation? irrespective of their nationality, immigration status or statelessness’.48 The children of irregular migrants are therefore equally entitled to birth registration as are the children of citizens or others, born within the jurisdiction of the State. This is confirmed by the positioning of the right to birth registration in the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. Its article 29 states that ‘[e]ach child of a migrant worker shall have the right to a name, to registration of birth and to a nationality’. This provision is applicable to all children of migrant workers, regardless of the immigration status of their parents as it is found in the general section where the rights of all – documented and non-documented – migrant workers are espoused.49 Similarly, a recent report issued under the auspices of the Council of Europe on the human rights of irregular migrants included the right to birth registration as one of the minimum rights to which irregular migrants are also entitled.50 Despite the vast majority of States being committed in writing to ensuring that all births are officially recorded,51 lack of access to birth registration currently affects some 48 million new-borns each year.52 While rates of coverage for birth registration vary from one country to another as well as within countries, there are a number of groups that are particularly vulnerable to non-registration in any location, including: children from particular ethnic or indigenous groups, especially those that experience discrimination, children of internally displaced persons or refugees, children who have lost their parents, including children orphaned by aIDS, children born to illiterate parents and children of migrants, especially undocumented migrants.53 48 49 50 51 52 53 Emphasis added. Committee on the Rights of the Child, General Comment No.6: Treatment of unaccompanied and separated children outside their country of origin, UN Doc. CRC/gC/2005/6, 2005, at para. 12. The Convention also includes a series of rights which only regular migrant workers can claim. These are promulgated in articles 36–56. It should be noted that the International Convention on the Rights of all Migrant Workers and Members of Their Families has been ratified by only 34 States to date and that the majority of these are major sending rather than receiving countries of (irregular) migrants. However, the deliberate separation of the rights of migrant workers into two categories – those applicable to all and those applicable only to regular migrant workers – and the position of the right to birth registration and a nationality in the first group, is illustrative of the international consensus already laid down in the ICCPR and CRC. Van Thijn, E., Human rights of irregular migrants, Committee on Migration, Refugees and Population of the Parliamentary assembly of the Council of Europe, Document 10924, 4 May 2006. The Convention on the Rights of the Child has been ratified by all but two of the world’s States and only Malaysia and Thailand adopted a general reservation to article 7 at the time of ratification (any other reservations and declarations with respect to article 7 referred only to the matter of nationality, not birth registration). Or 36 percent of all births, statistics from the year 2003; found in United Nations Children’s Fund, The ‘rights’ start to life, UNICEF Innocenti Research Centre, Florence, 2005, p. 3. Emphasis added. The reader is reminded that the term ‘undocumented migrants’ is synonymous to ‘irregular migrants’. The mention of children of refugees is also highlighted because refugees are treated under the law as irregular migrants in some countries; Miller, op.cit. (note 43), at p. 6. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 449 Laura van Waas The Committee on the Rights of the Child has specifically addressed the nonregistration of children born to irregular migrants in Japan, Thailand, the Netherlands (aruba) and the Dominican Republic. The Committee is ‘concerned that undocumented migrants are unable to register the birth of their children and that this has also resulted in cases of statelessness’.54 Even in industrialised countries, birth registration coverage is 98 percent (rather than 100 percent), leaving room for some 218,000 unrecorded births each year.55 For the reasons presented in the following paragraphs, it is a fair supposition that many of those unregistered in industrialised States are indeed children of irregular migrants. 4. ObStaCLES tO REgIStERINg tHE CHILDREN OF IRREgULaR MIgRaNtS The least subtle and undoubtedly the least common obstacle to birth registration of irregular migrants’ children is an explicit provision in the municipal laws on civil registration that bars them from accessing registration procedures. This is done by making such access conditional upon the parents’ possession of citizenship or a legal residence status. If the State has ratified international human rights instruments containing the universal right to birth registration, then such a law is incompatible with the country’s international obligations. However, where there are legal barriers to birth registration for irregular migrants, they tend to be less blatant, but rather they are hidden or an indirect result of several laws working in conjunction. a prime example is the law in Thailand. The Act for Registration of Inhabitants (the main legal instrument regulating all aspects of civil registration in Thailand, including birth registration) provides for compulsory birth registration for all children born in Thailand.56 However, successive regulations issued under this act to further clarify the civil registration obligations of foreigners present on Thai soil have specified only limited categories of non-nationals for which birth registration is compulsory or optional respectively.57 Moreover, in support of these regulations, the Ministry of the Interior has issued directives in order to instruct registrars on the specifics of registering the births of non-nationals. In the past, these instructions have clearly 54 55 56 57 450 This has been confirmed by the UN Committee on the Rights of the Child which has pointed out the problems of birth registration for children born to migrants and refugees in its concluding observations on – among others – bangladesh, georgia, Nepal, Nigeria, Iran, the Netherlands (antilles), belize, Kyrgyzstan, germany and Indonesia. Japan, UN Doc. CRC/C/15/add.231, 26 February 2004, at para. 31. Statistic for the year 2003. UNICEF, op.cit. (note 52), at p. 3. Sections 18–20 of the Act for Registration of Inhabitants, Thailand, 1991. Ministerial Regulation 1992 issued in conformity with the Civil Registration act 1991, subsequently replaced by Ministerial Regulation 2005 Ordering aliens to Conform to Civil Registration Processes. Intersentia The Children of Irregular Migrants: a Stateless generation? precluded the civil registrars from registering children born to irregular migrants or issuing these children birth certificates.58 Thus while the main Act for Registration of Inhabitants cannot be faulted, the implementing legislation and policy instructions nevertheless hinder access to birth registration for irregular migrants’ children. When analysing the opportunities for such children to be registered under the law of a particular State, it is thus important to bear such legislative complexities in mind. In many other cases, the influence of the law is less direct, but equally effective – for example where undocumented migrants are denied healthcare or where the law criminalises the ‘harbouring’ of irregular immigrants. These problems will be elaborated upon later. Whether municipal legislation is obstructive or not, in registering the birth of their children irregular migrants are reliant on the knowledge and – more importantly – the attitude of the government official who is charged with carrying out the prescribed procedures. at this stage, the greatest challenge that irregular migrants face is discrimination. Exposure of foreigners to discrimination is nothing new and attitudes towards ‘illegal immigrants’ tend to be particularly severe. In some States, deep-rooted discrimination towards a specific immigrant group may be the most influential factor in the non-registration of births. One country situation that may fit this description is the Dominican Republic, where ‘a history of mutual antagonism and conflict’59 with its neighbour, Haiti, has resulted in discrimination against persons (suspected of being) of Haitian origin at all levels of society. This is evident in the attitude of registry officials who reportedly refuse to proceed with birth registration if one or both of the parents are unable to produce proof of their own Dominican citizenship – by presenting Dominican cédulas (identity papers). Dominican legislation however, specifies no such requirement and allows for birth registration of children born to non-national parents.60 In one case, a registrar reportedly refused to issue birth certificates to three children whose parents did present proof of Dominican nationality, because the registrar nonetheless considered them to be Haitian based on their dark skin colour.61 The Inter-american Court of Human Rights confirmed this discriminatory application of birth registration – and nationality – laws in its 2005 decision on the case of Girls Dilcea Yean and Violeta Bosico vs Dominican Republic62 58 59 60 61 62 Directive Mortor 0310.1/Wor 8 issued by the Ministry for the Interior on 26 March 2002. The Ministerial Regulation that was in force at the time that this directive was issued was repealed and replaced by a new Regulation in 2005. It is as yet unclear whether this particular Directive of the Ministry of Interior instructing registrars not to proceed with birth registration for the children of irregular migrants will remain in force. However, the 2005 Ministerial Regulation has not excluded the possibility of non-registration of such persons. Human Rights Watch, op.cit. (note 36), at p. 7. See supra note 37. Human Rights Watch, op.cit. (note 36), at pp. 23–26; and UNICEF, op.cit. (note 38), pp. 8 and 11. Inter-american Court of Human Rights, judgement of 8 September 2005, Series C, No. 130. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 451 Laura van Waas although the Dominican government rejects the accusation of discrimination.63 a second difficulty in relying on the individual registrars to implement birth registration procedures correctly is their level of knowledge and understanding of the relevant laws and regulations. The instructions they receive may be unclear, poorly communicated or leave a wide margin of discretion, which contributes to divergent practices as well as allowing room for discrimination and corruption. all of the above-mentioned concerns are equally valid for hospital staff charged with issuing affidavits or delivery certificates for children born in the facility.64 If it is not the attitude of the government officials (or health workers), then it is the mind-set of the irregular migrants themselves that throws a spanner in the works. In general, ignorance plays a major role in non-registration, the circumstances of irregular migration serve only to exacerbate this problem.65 as non-nationals who may not speak the language of the host State, migrants are less well informed about the necessary requirements and procedures for obtaining birth registration. as irregular migrants they are unlikely to receive assistance from the host State to guide them through the applicable laws or to be targeted by information campaigns promoting birth registration. Closely linked to the ignorance of the importance of – and the procedures for – birth registration is the failure of parents to place registration high enough on their list of priorities.66 Other concerns are given precedence and birth registration is neglected. to register a birth inevitably costs both time and money. Despite recommendations to the contrary, many countries maintain a registration fee, which puts parents off.67 Even if no fee is imposed, the parents may need to pay for transport to the office where registration is processed and taking the time to arrange this will also mean time away from work, another cost.68 Irregular migrants, already some of the poorest persons in the host country, may not consider the future benefits of registration to weigh up against the immediate costs. Finally, irregular migrants are faced with one serious worry when deliberating whether or not to register their newborn with the authorities of the host State: the fear of repercussions due to their irregular immigration status. This last concern is a legitimate one and represents the greatest practical and conceptual obstacle to birth registration for children of irregular immigrants. birth 63 64 65 66 67 68 452 bbC News, Dominican’s reject court ruling, 12 October 2005, http://news.bbc.co.uk/2/hi/ americas/4335840.stm (accessed 18 august 2006). In the Dominican Republic for example, it has been reported that the problem for children of Haitian decent of obtaining proof of Dominican citizenship often begins at the hospital where the child is born as it refuses to issue ‘maternity papers’ to children of irregular immigrants. Human Rights Watch, op.cit. (note 36), at p. 23. Unawareness that a child should be registered at birth or ignorance of where to go to register the birth were cited as common reasons for non-registration in UNICEF, op.cit. (note 52), at pp. 4–5. Plan International, Universal Birth Registration – A Universal Responsibility, Plan International, Woking, February 2005, p. 27. UNICEF, op.cit. (note 52), at p. 4. Plan International, op.cit. (note 66), at p. 29. Intersentia The Children of Irregular Migrants: a Stateless generation? registration is by definition an act of a government authority. The importance of birth registration hinges on the very fact that it is an official recognition of the circumstances surrounding the child’s birth and therefore existence. at the same time, one of the other tasks of the government authority is to monitor and enforce immigration laws. are these two jobs compatible? Will the birth registration process necessarily uncover the parents immigration status and lead to their arrest and deportation? This is certainly the fear that prevents many irregular migrants from approaching the authorities to register the birth of their child. Ecuador is one example: The births of children born in Ecuador to undocumented refugees are frequently not registered due to the parents’ fear of deportation. This situation prevents the children from claiming Ecuadorian nationality, to which any child born in Ecuador is entitled under Ecuadorian Law.69 In Thailand, similar concerns have been raised because the immigration law criminalises providing assistance to or harbouring irregular migrants. This leads government officials such as registrars, but also for example medics, to feel obliged to inform the police if they are approached by persons without a regular immigration status.70 In the Netherlands, the fear of drawing attention to their irregular status has reportedly also prevented an unknown number of irregular migrants from approaching the authorities for birth registration.71 The threat – real or perceived – of such severe repercussions as arrest, deportation and family separation is likely to be sufficient incentive for many irregular migrants in countries across the globe to decide against birth registration. It presents one of the most difficult challenges in ensuring registration of this group and as such it demands a full study using comparative analysis of the approaches of different countries in search for best practices. besides the dramatic obstacles of faulty legislation, unhelpful attitudes and immigration concerns, there are a number of very practical barriers to birth registration that have yet to be discussed. If all other conditions are right, then access to birth registration simply becomes a question of logistics and in this matter 69 70 71 Ecuador, ICCPR, UN Doc. CCPR/C/79/add.92, 18 august 1998, at para. 18. Interview with Karn Sermchaiwong, Senior Protection Coordinator of the International Rescue Committee, bangkok office, January 2006. anecdotal evidence confirms that government officials and health workers have conformed to this practice in a number of cases involving birth registration. Snelders, P., Kraus S. and Wijers, M., Commentaar inzake de specifieke effecten van de Koppelingswet op de situatie van vrouwen t.b.v. de Tussentijdse Evaluatie Koppelingswet [a commentary on the specific effects of the Linkage Law on the situation of women in aid of the mid-term evaluation of the Linkage Law], Komitee Zelfstandig Verblijfsrecht Migrantenvrouwen, E-Quality and Clara Wichmann Instituut, amsterdam, 7 February 2000. It has been estimated that between 550 and 1200 children are born each year to irregular immigrants in the Netherlands. association of Dutch Female Doctors, Vrouwen zonder verblijfsvergunning en gezondheid(szorg) [Women without a residence permit and health(care)], Online fact sheet, www.vnva.nl/facts.php?id=30&page=2 (accessed 30 august 2006). Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 453 Laura van Waas irregular migrants, once again, belong to one of the most vulnerable groups. It has been suggested that children born in a medical facility are more likely to be registered at birth than children born at home.72 In some countries, birth registration has even been incorporated into the maternal healthcare system, to great effect.73 However, the children of irregular migrants are much more likely to fall into the high-risk category of home births, because the irregular immigration status of the parents will often prevent them from obtaining healthcare. In the Netherlands, the ‘Linkage Law’ which has been in force since 1998 was designed to link an individual’s right to various welfare services to his immigration status. Irregular immigrants were thereby prevented from accessing all social welfare benefits with the exception of education for minors, legal aid and ‘medically necessary healthcare’.74 While medical assistance during pregnancy and childbirth is seen as ‘medically necessary healthcare’, there are signs that irregular migrants are unaware of their right to such assistance or dare not make use of it for fear of the repercussions.75 There have also been reports of medical staff nevertheless refusing to treat persons with an irregular status or, having assisted in a delivery, refusing to issue maternity papers until the medical bill is settled.76 Similar circumstances contribute to the low rate of hospital births for irregular migrants’ children globally: blank refusal of treatment by healthcare operators, exclusion from healthcare insurance schemes rendering the use of medical facilities prohibitively expensive and the ever-present fear that hospital staff will tipoff the immigration authorities. another logistical matter that inhibits access to birth registration procedures for irregular migrants is their geographical location and restrictions on their freedom of movement. Thailand provides one such example. Irregular migrants are concentrated in the border regions of the country. This includes the ‘persons fleeing fighting’ who reside in temporary shelters (refugee camps) dotted along the border, irregular migrant workers from neighbouring countries and a number of other categories of persons without official, legal permission to reside.77 Much of this terrain is remote and mountainous, factors which the Committee on the Rights of the Child has 72 73 74 75 76 77 454 See for example Concluding observations of the Committee on the Rights of the Child, Kenya, UN Doc. CRC/C/15/add.160, 7 November 2001, at para. 31; and gambia, UN Doc. CRC/C/15/add.165, 6 November 2001, at para. 30. See also Miller, op.cit. (note 43), at p. 6. It is suggested that other States learn from this practice. UNICEF, op.cit. (note 61), at p. 20. Ministry of Justice, Koppelingswet: Vreemdelingen en de controle op het verblijfsrecht bij voorzieningen [Linkage Law: Foreigners and checking the immigration status in the provision of services], Information Leaflet 4486, Ministry of Justice, The Hague, March 2004, p. 7. It should be noted that there is no formal obligation to report irregular immigrants to the police. Ibidem, at p. 8. See supra note 71. See supra note 14. a geographic overview of migrant workers composed by UNESCO Culture geographic Information Systems Unit in July 2004 clearly shows the highest concentration of irregular migrants in the border provinces. Maps showing the Number of Migrant Workers from Cambodia, Lao PDR and Myanmar Who Registered with the Ministry of the Interior, UNESCO Intersentia The Children of Irregular Migrants: a Stateless generation? identified as a negative influence on birth registration rates.78 all of these persons are subject to severe restrictions of freedom of movement. Residents of the temporary shelters are not permitted to leave the camp, although some are able to find a way around these restrictions.79 Most of the other categories of irregular migrants are required to obtain permission from the local authorities or the army to travel from one district or even from one village to another.80 For all irregular immigrants in Thailand, travel is risky, for there are hundreds of security checkpoints dotted along the roads (particularly in the border regions), where police or border patrol guards check identification and travel documents. an irregular migrant who attempts to travel along any of these routes is highly likely to be arrested and will either have to pay a bribe or face deportation.81 The journey to a hospital for medical assistance with a delivery or to the district office to register the birth of a child is therefore a very difficult one for an irregular migrant to make. Moreover, many irregular migrant workers are prevented by their employers from leaving the compound in which they work and live as they became indebted to their employer in the process of migrating to Thailand via smuggling and people trafficking networks.82 These considerations further hinder access to birth registration processes that are already difficult to reach in the remote and isolated areas where many irregular migrants live. In sum, the lack of access to birth registration procedures in the receiving State for children of irregular migrants is the result of a host of contributing factors. These are in addition to the universal complaints that hinder birth registration such as education and literacy levels of the parents, poverty, allocation of government resources and excessively bureaucratic procedures.83 The examples presented above serve to illustrate the increased vulnerability of irregular migrants’ children to non-registration at birth without pretending to be exhaustive or indicative of all situations involving irregular migrants. a final comment that is due at this stage is the observation that to tackle any of the problems discussed above will require the kind of political willpower that is 78 79 80 81 82 83 Social Sentinel Surveillance Project on trafficking in association with United Nations Inter-agency Project on trafficking in Woman and Children in the Mekong Sub-Region, 2004. CRC Concluding observations Vietnam, UN Doc. CRC/C/15/add.200, 18 March 2003, at para. 31. UNICEF also points to such geographic barriers as one of the main obstacles to birth registration; UNICEF, op.cit. (note 61), at p. 15. Some camp residents make ‘special arrangements’, mainly through the use of bribes, in order to leave the camp. Interview with Clara van Panhuys, Protection Officer, UNHCR bangkok, May 2006. Courtland Robinson, W., ‘Thailand: background paper on human rights, refugees and asylum seekers’, Writenet Independent analysis, July 2004, pp. 16–17. The Thai authorities may ‘informally’ deport as many as 10,000 irregular migrants each month in 2003. Many escape deportation through bribes. Human Rights Watch, Out of Sight, Out of Mind: Thai Policy towards Burmese Refugees, Vol. 16, No. 2, February 2004, p. 12 available at: http://hrw. org/reports/2004/thailand0204/ (accessed 18 august 2006); and amnesty International, op.cit. (note 19), at p. 12. Koetsawang, op.cit. (note 22). UNICEF, op.cit. (note 61); Plan International, op.cit. (note 66); and UNICEF, op.cit. (note 52). Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 455 Laura van Waas likely to be sadly lacking. So long as the irregular migrant is approached through the lens of ‘national security’ rather than as a human rights question – which appears to be the case in many countries – it would be foolhardy to expect governments to invest time and resources into combating non-registration of these children; particularly where budgets are already stretched and the irregular immigrant remains a voiceless, almost invisible, presence in the State. It should not be forgotten that ‘in a significant number of countries, fear of mass influxes of asylum seekers, refugees or economic immigrants presents a political barrier to the registration of births of non-nationals’.84 Moreover, the example of the Dominican Republic’s treatment of irregular migrants from Haiti has shown how birth registration practices can become caught up in a web of discrimination and form part of a deliberate policy to prevent such children from claiming nationality. The focus of this article has been solely on the role of the host State in the registration at birth of an irregular migrant’s child, yet one important aspect of this problem must not be overlooked: the role of the sending State. It could be argued that the ‘applicable government authority’ whose task it is to proceed with birth registration refers to the authority of the State upon whose territory the child is born. However, it is also possible to apply a broader interpretation of a State’s jurisdiction, whereby territorial and personal jurisdiction are included. In view of the vulnerable position of the irregular migrant in relation to the authorities of the receiving State, it would be preferable to maintain this broader interpretation as it would denote a role for the State of nationality of the parents in the birth registration process. This is indeed the path that the Committee on the Rights of the Child appears to be embarking upon: With reference to the high number of overseas Filipino workers, the Committee is concerned about children born abroad to Filipino migrant workers. Due to the non-registration of these children, they are deprived of their right to name, nationality and identity as well as to basic services. The Committee recommends the State party to encourage and facilitate parents, irrespective of their residence status, to register their children born abroad.85 although it should not detract from the obligation of the host State to register all births that take place on State soil, the involvement of the sending State would be a useful tool in the particular circumstance of irregular migration in view of the obstacles presented in this article. It is a route that is already being investigated in the context of Haitian irregular migrants in the Dominican Republic, where nationality 84 85 456 UNICEF, op.cit. (note 61). CRC Concluding Observations: Philippines, UN Doc. CRC/C/15/add.258, 2005, at paras 36 and 37. to date, only one other recommendation to this effect can be traced in the concluding observations of the Committee and the idea has yet to be taken up by other treaty bodies or be elaborated upon in a general comment. bosnia and Herzegovina, UN Doc. CRC/C/15/add.259, 2005, at para. 33. Intersentia The Children of Irregular Migrants: a Stateless generation? issues are intermingled with birth registration problems86 but would be useful in many other country situations. a comprehensive study of existing mechanisms for the registration of children born to nationals abroad and the feasibility of irregular migrants accessing such procedures as an alternative to relying on the host State for birth registration would be highly constructive in providing a fresh perspective on this complex issue.87 It may also provide a way of circumventing one of the most difficult problems involved in birth registration of irregular migrants – the reliance on the authorities of the host State, the same authorities that are charged with enforcing immigration laws against irregular migrants. 5. FINaL ObSERVatIONS Having discussed the obstacles to birth registration for the children of irregular migrants at some length, it is time to return to the thesis with which this article began: that a generation of stateless children may be born to these migrants. While it is by no means suggested that all children who are not registered at birth are subsequently stateless, it is a fact that without birth registration, there is a much greater risk of being unable to claim any nationality. There is evidence that this link between birth registration and nationality is understood by the States involved and non-registration may be part of an overall bid to prevent the children of these migrants claiming the nationality of the host State.88 It is important to remember that States are free to regulate the conferral of nationality at birth and are under no obligation to grant nationality to all children born on their soil. However, having laid down the rules for attribution of nationality at birth in municipal legislation, it is unacceptable for children to then be excluded from citizenship by way of a discriminatory application of those laws or of the regulations surrounding birth registration. Moreover, under international human rights law, every child has the right to birth registration and the right to acquire a nationality. Where particular obstacles to the realisation of these rights have been uncovered – as in the case of the child of an irregular migrant – 86 87 88 This is evidenced in the Protocol of Understanding signed between the Dominican and Haitian government in December 1999 according to which the Haitian government agreed to take steps to ensure that its nationals receive Haitian identity documents. birth registration for children of Haitian parentage is available at the Haitian Embassy in Santo Domingo as well as a number of Haitian consulates dotted around the country. Cooperation between the two States does appear to be a precondition for resolution of the situation. Ferguson, J., Migration in the Caribbean: Haiti, the Dominican Republic and Beyond, Minority Rights group International, London, 2003; and Plan International, Situation Study and Basis for a Regional Programme for Supporting the Registration of the Birth of Children, Plan International, Woking, 2004. Procedures for registering the birth of a child born to a national abroad are not uncommon and generally operate through the embassy or consulate in the host State. among the possible concerns would be the lack of decentralisation of these mechanisms and the need for logistical arrangements to ensure that they are actually available to irregular migrants. Illustrated by discussion of the Dominican Republic above. Netherlands Quarterly of Human Rights, Vol. 25/3 (2007) 457 Laura van Waas individual States and the international community as a whole are compelled to look more closely at this issue and work towards its resolution. This article has drawn upon only a handful of readily available examples to illustrate the problems faced by irregular migrants in trying to register the birth of their children. However, this issue is alive in many more countries, in every region of the world. to date, it has failed to attract any significant attention or be the subject of international studies or surveys. Having scratched the surface of a number of serious and complex problems, the crucial next step is a comprehensive analysis of these issues by way of an inventory and comparative study of how birth registration of children born to irregular migrants is organised across the globe, in order to derive appropriate recommendations and examples of best practices. at the moment, the concept of universal birth registration is attracting increasing attention. Reports by UNICEF and Plan International have produced recommendations for increasing birth registration rates, yet these suggestions barely touch upon the particular issues surrounding the registration of children of irregular migrants. Meanwhile, there appears to be an increasing willingness to consider the question of the fundamental rights of irregular migrants.89 The time is right to merge these movements and take an in-depth look at the particular issue of birth registration in the context of irregular migration. This would also provide a stepping-stone for tackling the more delicate matters of nationality attribution and statelessness in countries where problems are uncovered. In recent decades, countries that play host to irregular migrants have been concentrating their efforts and resources on attempts to halt the flow of irregular migration.90 It is however a fallacy to believe that measures such as stricter border controls and the exclusion of irregular migrants’ children from birthright citizenship will have the effect of stemming irregular migration entirely. The current immigration debates in the United States and in other countries across the globe must take this reality into account. The act of becoming an irregular migrant is by no means equivalent to forfeiting basic human rights, thus the host State (and sending State) carry a responsibility to protect these rights, including the right to birth registration. While discussions within receiving countries on what to do about irregular migration will undoubtedly continue so too must initiatives to ensure that these migrants’ rights are respected. The Committee on the Rights of the Child has made it clear: States are to make birth registration accessible to all children, including those of irregular migrant workers. The next step is to determine the best way of achieving this and start to prescribe and implement appropriate solutions. 89 90 458 Consider the adoption of the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families which includes a series of fundamental rights for irregular as well as regular migrant workers and the recent release of a report in the Council of Europe on the human rights of irregular migrants which includes a draft Resolution aiming to improve the protection of these rights within the Council of Europe. Thijn, op.cit. (note 50). Meyers, op.cit. (note 11), at p. 175. Intersentia