Our House: Recommendation CM/Rec on the nationality of children

Strasbourg, 30 June / juin 2026 Bilingual / Bilingue

EUROPEAN COMMITTEE ON LEGAL

CO-OPERATION

(CDCJ)

LIMITED WORKING GROUP ON MIGRATION

(CDCJ-MIG)

Draft revised Recommendation CM/Rec on the nationality of children (CDCJ-MIG(2026)02 prov3), its draft explanatory memorandum (CDCJ-MIG(2026)03 prov3) and its draft checklist for policy makers (CDCJ-2026)05 prov3)

DRAFTING PROPOSALS FORM

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Projet de Recommandation révisée CM/Rec sur la nationalité des enfants (CDCJ-MIG(2026)02 prov3), son projet d’exposé des motifs (CDCJ-MIG(2026)03 prov3) et son projet de liste de contrôle pour les décideurs politique (CDCJ-2026)05 prov3)

FORMULAIRE POUR LES PROPOSITIONS DE REDACTION

Document prepared by the Secretariat

Directorate General Human Rights and Rule of Law – DGI

Document préparé par le Secrétariat

Direction générale Droit humains et État de droit – DGI

DRAFTING PROPOSALS FORM /

FORMULAIRE POUR LES PROPOSITIONS DE REDACTION

In view of the 6^th and last meeting of CDCJ-MIG (22-23 September 2026), delegations are invited to return any drafting proposals and possible justification at their earliest convenience and no later than 4 September 2026 to the following address: DGI-CDCJ@coe.int.

Please include these in the table below and return this document in Word format.

When providing drafting proposals, please highlight your amendments (ideas, phrases, or words proposed to be added should be provided in bold, while the ones proposed to be removed should be crossed out).

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En vue de la 6^e et dernière réunion du CDCJ-MIG (22-23 septembre 2026), les délégations sont invitées à renvoyer toute proposition de rédaction et possible justification dans les meilleurs délais et avant le 4 septembre 2026 au plus tard à l’adresse suivante : DGI-CDCJ@coe.int.

Veuillez les inclure dans le tableau ci-dessous et nous retourner le document en version Word.

Lorsque vous fournissez des propositions de rédaction, merci de mettre en évidence vos modifications (les idées, les phrases ou les mots qu’il est proposé d’ajouter doivent être indiqués en gras, tandis que ceux qu’il est proposé de supprimer doivent être barrés).

Submitting organisation: VšĮ Our House Centre for Human Rights and Relief (Lithuania)

DRAFT REVISED RECOMMENDATION / *PROJET DE RECOMMANDATION REVISEE*
PREAMBLE / *PREAMBULE*
Recital No / *Considérant n°*	Drafting proposal / *Proposition de redaction*		Justification
New recital after S	Recognising that children may face a risk of statelessness, undetermined nationality or an inability to effectively establish or exercise their nationality where access to civil-status, nationality or identity documentation is denied, made impossible or rendered unsafe by the authorities of a State, including in situations of persecution, serious harm or transnational repression;		The draft appropriately stresses effective nationality, prevention of statelessness and children’s access to rights. A specific recital is needed to address situations in which a child formally possesses, or may possess, a nationality but cannot safely obtain the documents or consular acts needed to establish or exercise it. Such situations can create prolonged legal uncertainty and a pathway to statelessness or undetermined nationality.


I. REDUCING STATELESSNESS OF CHILDREN / *RÉDUCTION DE L’APATRIDIE DES ENFANTS*
Principle No	Drafting proposal / *Proposition de redaction*		Justification
Principle 4	provide that children who, at birthat birth or thereafter, have the right to the nationality of another state, but who could not reasonably be expected to exercise that right, are not excluded from the scope of principles 1 and 2 above, including where exercising that right would require the child or a parent to contact the authorities of a State where such contact would expose them to a reasonably foreseeable risk of persecution, serious harm or transnational repression, or to return to a State where return would be unsafe;		The explanatory memorandum already recognises “compelling circumstances” and expressly protects refugees and persons with similar protection from being required to register a child with the authorities of the State they fled. The principle should make that safeguard visible in the operative text and should not be confined to obstacles existing strictly at birth.
Principle 6	co-operate closely on issues of nationality and statelessness of children, including exchanging information on nationality legislation and public policies, as well as on nationality details in individual cases, subject to applicable laws on personal data protection, the best interests of the child, and an assessment of whether such contact or information exchange could expose the child or family members to persecution, serious harm, transnational repression or other protection risks;		Inter-State co-operation can be essential, but case-specific enquiries may reveal the location, family links or protection status of children and parents to authorities of a country of persecution. A child-protection safeguard is therefore necessary alongside data-protection safeguards.
New Principle 7 bis	ensure that children who possess or may possess a nationality but cannot effectively establish or exercise it because civil-status, nationality or identity documentation is inaccessible are not left in prolonged legal uncertainty; where such documentation cannot reasonably or safely be obtained, accept appropriate alternative evidence and provide access to effective nationality or statelessness determination mechanisms;		The current draft addresses unknown or undetermined nationality but does not expressly cover children whose nationality exists formally yet cannot be documented or effectively exercised. This proposal addresses politically induced or otherwise unsafe documentation deprivation without treating every expired or unavailable document as statelessness.
II. NATIONALITY AS A CONSEQUENCE OF A CHILD-PARENT FAMILY RELATIONSHIP / *NATIONALITÉ RÉSULTANT DE LA FILIATION*
Principle No	Drafting proposal / *Proposition de redaction*		Justification



III. CHILDREN BORN ON THE TERRITORY OF A STATE TO A FOREIGN PARENT / *ENFANTS NES D’UN PARENT ETRANGER SUR LE TERRITOIRE DE L’ÉTAT*
Principle No	Drafting proposal / *Proposition de redaction*		Justification



IV. POSITION OF CHILDREN TREATED AS NATIONALS / *SITUATION DES ENFANTS AYANT ETE CONSIDERES COMME DES RESSORTISSANTS*
Principle No	Drafting proposal / *Proposition de redaction*		Justification



V. RIGHTS OF CHILDREN IN PROCEEDINGS AFFECTING THEIR ACCESS TO NATIONALITY AND STATELESSNESS DETERMINATION / *DROITS DES ENFANTS DANS LES PROCEDURES AFFECTANT LEUR ACCES A LA NATIONALITE* *ET LA DETERMINATION DE L’APATRIDIE*
Principle No	Drafting proposal / *Proposition de redaction*		Justification
Principle 13	ensure that the best interests of the child is a primary consideration in proceedings regarding access or loss of nationality and in statelessness determination procedures, including when deciding whether the child or a parent can reasonably be required to contact foreign authorities, attend a consulate, obtain documents abroad or return to another State for documentation purposes;		The best-interests assessment should expressly encompass protection and safety risks created by documentary or consular requirements. This is especially relevant for refugee, asylum-seeking and other families exposed to cross-border pressure.


VI. STATELESSNESS DETERMINATION PROCEDURE / *PROCEDURE DE DETERMINATION DE L’APATRIDIE*
Principle No	Drafting proposal / *Proposition de redaction*		Justification
Principle 22	ensure that, where required, national authorities provide assistance to children in the collection of evidence during a statelessness determination procedure, accept oral, written, circumstantial and other appropriate alternative evidence where official documents cannot reasonably or safely be obtained, and do not require contact with foreign authorities where such contact would create a reasonably foreseeable protection risk;		The memorandum recognises that evidence of statelessness is often difficult to obtain and that authorities should assist children. The operative principle should clarify that assistance is not synonymous with compulsory contact with foreign authorities and that alternative evidence must remain available.


VII. REGISTRATION OF BIRTH TO ENSURE CHILDREN’S ACCESS TO RIGHTS / *ENREGISTREMENT DES NAISSANCES POUR GARANTIR L’ACCES DES ENFANTS A LEURS DROITS*
Principle No		Drafting proposal / *Proposition de redaction*	Justification
Principle 26		where possible, provide the possibility for children born abroad but having been recognised as refugees, stateless or victims of human trafficking by the State where they have their habitual residence on the territory of the State, or for whom obtaining a birth certificate from the State of birth cannot reasonably or safely be expected because of a risk of persecution, serious harm, transnational repression or other compelling circumstances, to request the delivery of a birth certificate, subject to judicial review, if access to such a document on the territory of their birth proves impossible;	The need for an alternative birth-registration route can arise outside the three formally listed statuses. A child should not fall into a documentation gap merely because the family lacks a particular protection label where approaching the State of birth is objectively unsafe or impossible.

DRAFT EXPLANATORY MEMORANDUM / *PROJET D’EXPOSE DES MOTIFS*
INTRODUCTION
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification



I. REDUCING STATELESSNESS OF CHILDREN / *RÉDUCTION DE L’APATRIDIE DES ENFANTS*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification
Paragraph 31	Add at the end: Compelling circumstances should be understood broadly. They may include situations in which a State of origin refuses, withdraws or does not renew passports, civil-status records or other identity or nationality documents; restricts consular services; conditions documentation on personal appearance or return to the country; or otherwise uses access to documentation as a means of pressure against persons abroad. Such politically induced documentation deprivation may prevent a child from establishing or effectively exercising a nationality and may place the child at risk of statelessness or prolonged undetermined nationality.	This would give practical content to the existing reference to “compelling circumstances” and capture a contemporary cross-border protection problem without conflating lack of documentation with de iure statelessness.
Paragraph 32	Following the final decision rejecting the application for international protection, individuals are obliged to contact the relevant authorities in their State of nationality. This is to ensure their children are granted access to the nationality of the concerned State. Following a final decision rejecting an application for international protection, contact with the authorities of the State of nationality may be expected only where, after an individual assessment, such contact is reasonably accessible and does not expose the child, the parents or other family members to a reasonably foreseeable risk of persecution, serious harm, transnational repression or other serious protection consequences. Where such contact cannot reasonably or safely be required, the child should not be disadvantaged and alternative evidentiary or procedural means should be available.	A rejected protection claim does not necessarily establish that consular contact is safe. Risks may arise from cross-border surveillance, retaliation against relatives, politically motivated documentation restrictions or other conduct that was not determinative of the asylum claim. The child’s best interests require an individual assessment.
Paragraph 33	Add after “straightforward administrative action”: A procedure should be regarded as straightforward only if it is practically accessible and can be completed without exposing the child or family members to a protection risk. Registration at a consulate, personal appearance before authorities of the State of origin, or return to that State should not be treated as a merely administrative step where there are reasonable grounds to consider such contact or travel unsafe.	The present wording gives consular registration as an example of a straightforward administrative act. In protection-sensitive cases, the legal simplicity of a procedure does not mean that it is safe or realistically accessible.
II. NATIONALITY AS A CONSEQUENCE OF A CHILD-PARENT FAMILY RELATIONSHIP / *NATIONALITÉ RÉSULTANT DE LA FILIATION*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification



III. CHILDREN BORN ON THE TERRITORY OF A STATE TO A FOREIGN PARENT / *ENFANTS NES D’UN PARENT ETRANGER SUR LE TERRITOIRE DE L’ÉTAT*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification



IV. POSITION OF CHILDREN TREATED AS NATIONALS / *SITUATION DES ENFANTS AYANT ETE CONSIDERES COMME DES RESSORTISSANTS*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification




V. RIGHTS OF CHILDREN IN PROCEEDINGS AFFECTING THEIR ACCESS TO NATIONALITY / *DROITS DES ENFANTS DANS LES PROCEDURES AFFECTANT LEUR ACCES A LA NATIONALITE ET LA DETERMINATION DE L’APATRIDIE*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification
Paragraph 68	Add at the end: The assessment should also consider the consequences of requiring the child or a parent to obtain documents from, communicate with, appear before the authorities of, or travel to another State. Particular attention should be paid to risks of persecution, serious harm, retaliation against family members, transnational repression and prolonged deprivation of identity or nationality documentation.	This specifies how the existing holistic best-interests assessment should operate where nationality procedures interact with protection risks and inaccessible documentation.


VI. STATELESSNESS DETERMINATION PROCEDURE / *PROCEDURE DE DETERMINATION DE L’APATRIDIE*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification
Paragraph 94	Add after the sentence referring to assistance facilitating contact with authorities of another country: Such assistance must not be interpreted as requiring or facilitating contact with foreign authorities where this could reveal the location, identity, family links or protection status of the child or family members in circumstances giving rise to a reasonably foreseeable protection risk. In those cases, competent authorities should rely, as appropriate, on alternative sources of information and oral, written or circumstantial evidence.	The paragraph currently presents contact with foreign authorities as a possible form of assistance. A protection-sensitive exception is needed, particularly for refugees, asylum seekers, human rights defenders and families exposed to cross-border coercion.
Paragraph 96	Add at the end: No adverse inference should be drawn from a child’s or parent’s inability or refusal to obtain an official document where obtaining it would be impossible, disproportionately burdensome or unsafe for protection-related reasons. The absence of such a document should not, by itself, prevent nationality or statelessness determination where other reliable evidence is available.	This follows from the shared burden of proof and from the memorandum’s recognition that statelessness frequently requires proving a negative fact. It also prevents documentary requirements from becoming an insurmountable barrier.

VII. REGISTRATION OF BIRTH TO ENSURE CHILDREN’S ACCESS TO RIGHTS / *ENREGISTREMENT DES NAISSANCES POUR GARANTIR L’ACCES DES ENFANTS A LEURS DROITS*
Paragraph No	Drafting proposal / *Proposition de redaction*	Justification
Paragraph 103	Add at the end: Assistance with registration in the State of birth should be pursued only where contact with the relevant authorities is reasonably accessible and safe for the child and family. Where this is not the case, the State of habitual residence should proceed directly to appropriate alternative measures under Principle 26.	This prevents Principle 25 from being interpreted as requiring a futile or dangerous attempt to engage the authorities of the country of birth before an alternative procedure becomes available.
Paragraph 109	In such cases, the primary responsibility of the State should be to facilitate the child’s birth registration and the acquisition of the relevant documentation in a foreign country. In such cases, where it is reasonably accessible and safe, the State should facilitate the child’s birth registration and acquisition of the relevant documentation in the foreign country. Where contact with the authorities of that country, personal appearance, or travel there cannot reasonably or safely be expected, the State of residence should not require such steps as a precondition and should ensure access to an alternative procedure capable of establishing the birth and supporting determination of the child’s nationality.	The current formulation assumes that foreign-document acquisition is the primary route. A safety qualification is necessary to protect children whose documentation is inaccessible because of persecution, conflict, transnational repression or politically induced administrative restrictions.

DRAFT CHECKLIST FOR POLICY MAKERS / *PROJET DE LISTE DE CONTRÔLE POUR LES DÉCIDEURS POLITIQUES*
I. REDUCING STATELESSNESS OF CHILDREN / *RÉDUCTION DE L’APATRIDIE DES ENFANTS*
Question No	Drafting proposal / *Proposition de redaction*		Justification
Question 3	What safeguards are in place to reduce the registration of children as being of unknown or undetermined nationality for the shortest time possible? Do these safeguards also identify children whose nationality cannot be effectively established or documented because official documents or consular services are inaccessible, and ensure that such children are not left in prolonged legal uncertainty?		This operationalises the distinction between formal statelessness and documentation deprivation while ensuring that both situations trigger timely action.
Question 4	What mechanisms are in place to facilitate co-operation and exchanges of information between relevant national and foreign authorities on issues of nationality and statelessness of children? Before individual case information is shared or foreign authorities are contacted, is there a mechanism to assess whether this could expose the child or family members to persecution, serious harm, transnational repression or other protection risks?		Policy makers should check not only whether co-operation exists but whether it contains child-protection, confidentiality and cross-border risk safeguards.

II. NATIONALITY AS A CONSEQUENCE OF A CHILD-PARENT FAMILY RELATIONSHIP / *NATIONALITÉ RÉSULTANT DE LA FILIATION*
Question No	Drafting proposal / *Proposition de redaction*		Justification



III. CHILDREN BORN ON THE TERRITORY OF A STATE TO A FOREIGN PARENT / *ENFANTS NES D’UN PARENT ETRANGER SUR LE TERRITOIRE DE L’ÉTAT*
Question No	Drafting proposal / *Proposition de redaction*		Justification



IV. POSITION OF CHILDREN TREATED AS NATIONALS / *SITUATION DES ENFANTS AYANT ETE CONSIDERES COMME DES RESSORTISSANTS*
Question No	Drafting proposal / *Proposition de redaction*		Justification



V. RIGHTS OF CHILDREN IN PROCEEDINGS AFFECTING THEIR ACCESS TO NATIONALITY AND STATELESSNESS DETERMINATION / *DROITS DES ENFANTS DANS LES PROCEDURES AFFECTANT LEUR ACCES A LA NATIONALITE* *ET LA DETERMINATION DE L’APATRIDIE*
Question No	Drafting proposal / *Proposition de redaction*		Justification
Question 9	Does the national legal framework ensure that the best interests of the child are considered in access to nationality and statelessness determination proceedings? Does the assessment specifically consider whether requiring consular contact, foreign-document acquisition, personal appearance before foreign authorities or travel to another State would be unsafe or unreasonable for the child or family? What safeguards are in place to ensure that these proceedings are child-friendly, timely, and adapted to the child’s needs and capacities?		This turns the best-interests principle into a concrete policy check for documentation and protection-sensitive cases.


VI. STATELESSNESS DETERMINATION PROCEDURE / *PROCEDURE DE DETERMINATION DE L’APATRIDIE*
Question No	Drafting proposal / *Proposition de redaction*		Justification
Question 14 bis	Are effective mechanisms available to identify and resolve the situation of children who may possess a nationality but cannot safely or effectively establish or document it, including through access to nationality determination or statelessness determination where appropriate?		Children affected by documentation deprivation may otherwise fall outside a procedure designed only for persons already established as stateless.
Question 15	Does the national framework ensure that, where required, authorities provide assistance to children in the collection of evidence during a statelessness determination procedure? Are oral, written, circumstantial and other appropriate forms of alternative evidence accepted where official documents cannot reasonably or safely be obtained, and are children protected from being required to contact foreign authorities where this would create a protection risk?		The evidence checklist should reflect the shared burden of proof and prevent official-document requirements from defeating access to determination procedures.

VII. REGISTRATION OF BIRTH TO ENSURE CHILDREN’S ACCESS TO RIGHTS / *ENREGISTREMENT DES NAISSANCES POUR GARANTIR L’ACCES DES ENFANTS A LEURS DROITS*
Question No		Drafting proposal / *Proposition de redaction*	Justification
Question 17		In case of a child born abroad not having a birth certificate but having their habitual residence on the territory of the State, is there, where possible, any assistance, free of charge, with birth registration in their country of birth? Is such assistance subject to an assessment that contact with the authorities of the country of birth is safe and reasonable, and is an alternative procedure available without requiring prior contact, personal appearance or return where those steps would create a protection risk? If access to birth registration on the territory of their birth proves impossible, is there a possibility for a child born abroad but having been recognised as refugees, stateless or victims of human trafficking by the State where they have their habitual residence on the territory of the State to request the delivery of such a document?	A policy framework should not require families to exhaust unsafe consular or return-based procedures before a child can obtain proof of birth.