Spain - Judgement of the Court of Appeals of Gipuzkoa of 11 May 2022

A 7-year-old child arrived in Spain irregularly by boat in April 2018. She was born in Morocco to a Cameroonian mother while they were on a journey to Europe, and due to the circumstances the child’s birth was not registered. Her mother contacted the Cameroonian and Moroccan embassies in Spain, but she never succeeded in registering her birth nor recognising her Cameroonian nor Moroccan nationality. The child was thus stateless, as declared in the first instance judgment and confirmed on appeal. The Provincial Court of Guipúzcoa held that the mother had made a genuine effort to remove all bureaucratic obstacles to have the child’s Cameroonian nationality recognised. The Court held that the safeguard established in the Spanish Civil Code to prevent statelessness of children born in Spain should be applied broadly and by analogy, as this is the only interpretation in compliance with international treaties to which Spain is a party and with the principle of the best interests of the child. Therefore it found that there was a violation of the child's fundamental rights and declared that the child held Spanish nationality and agreed to order the Central Civil Registry to register the birth of the child. 

Case name (in original language)
España - Sección 2ª de la Audiencia Provincial de Gipuzkoa, Sentencia 341/2022
Case status
Decided
Case number
Judgement 341/2022 (Appeal proceedings 2209/2022)
Date of decision
State
Court / UN Treaty Body
Court of Appeals of Gipuzkoa
Language(s) the decision is available in
Spanish
Applicant's country of birth
Morocco
Applicant's country of residence
Spain
Relevant Legislative Provisions
  • Universal Declaration of Human Rights, 10 December 1948
  • Convention on the Rights of the Child, 20 November 1989
  • International Covenant on Civil and Political Rights, 16 December 1966
  • Spanish Constitution of 1978
  • Act 1/1999, of 15 January, on the Legal Protection of Minors
  • Civil Code of 1889
Facts

A woman of Cameroonian origin arrived irregularly by boat to Spain in 2018 with her infant daughter, who was born in Morocco during the journey to Spain and lacked a birth certificate. The mother was granted a residence permit, but not the child as she lacked a passport. The mother started a series of administrative and bureaucratic procedures for her daughter to obtain nationality in the countries to which the child had some link: (i) Cameroon, i.e. her mother’s country; (ii) Morocco, i.e. her country of birth; and (iii) Spain, i.e. her country of residence. Both the Cameroonian and the Moroccan authorities denied the child's nationality. The applicant further requested the Spanish authorities the presumption of the child's nationality and, in the alternative, the registration of birth after the legal deadline. Both requests were also denied.

The mother appealed the administrative decision denying the child's nationality before the Civil Courts and requested that the child be granted Spanish nationality. The Court of First Instance number 5 of San Sebastian recognised the child's Spanish nationality in its decision of 24 November 2021. Both the Spanish Ministry of Interior and the Public Prosecution appealed the judgement before the Court of Appeals of Gipuzkoa (Audiencia Provincial de Guipúzcoa).

Decision & Reasoning

The Court finds that there was a violation of the child's fundamental rights and declares that the child held Spanish nationality and agreed to order the Central Civil Registry to register the birth of the child. The Court founds its decision on the legal concept of the best interests of the child enshrined in international and national standards, and in particular on the provisions of Article 7 of the Convention on the Rights of the Child which states that "the child shall be registered immediately after birth and shall have the right from birth to a name, to acquire a nationality…". Therefore, the Court understands that article 17(1)(c) of the Civil Code must be interpreted extensively, since it "constitutes the only mechanism that allows compliance with the legal provisions contained in the international treaties to which Spain is a party, respecting and effectively complying with the best interests of the child established in national provisions". Furthermore, the decision expressly states that the applicant made an effort to remove the administrative and bureaucratic obstacles and to obtain Cameroonian nationality for the minor, which proved to be impossible. Finally, the Court argues that allowing the child to continue in a state of statelessness would place her in a situation of inequality with respect to other minors, with a significant reduction in her basic and fundamental rights.

Outcome

The court dismissed the appeal and upheld the contested decision granting Spanish nationality to the minor.

Caselaw cited
  • Judgement of the Supreme Court of 20 December 2018
  • Judgement of the Supreme Court of 1 February 2016
  • Judgement of the Supreme Court of 18 July 2019
  • Judgement of the Supreme Court of 19 April 2022