Under Article 1 of the 1961 Convention on the Reduction of Statelessness, a Contracting State shall grant its nationality to a person born in its territory who would otherwise become a stateless person.
Citizenship is granted:
(a) at birth, under the law or
(b) in the event of a breach before the competent authority of the application by or on behalf of the person concerned following the procedure laid down by national law. Subject to the provisions of paragraph 2 of this Article, no such request may be rejected.
According to Article 7 of the Convention on the Rights of the Child, a child must be registered immediately after birth, have the right to a name and a nationality, as well as, as far as possible, the right to know his or her parents and their custody. States (the Parties who signed up for the Convention) shall ensure that these rights are exercised in accordance with their national law and that their obligations under relevant international instruments in this field are fulfilled, in particular where the child would not otherwise be national.
Ukraine has acceded and ratified both treaties, yet the families of asylum seekers or even families who have received the statuses of additional protection in Ukraine cannot obtain Ukrainian citizenship for their children born in Ukraine, which puts them at risk of statelessness. Dozens of children born in the families of asylum seekers who received legal assistance from the Charitable Fund “Right to Protection” (R2P) have undetermined citizenship.
Legislation of Ukraine and the position of the State Migration Service
Existing international treaties, ratified by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. However, notwithstanding the provisions of both of the above-mentioned Conventions, the Law of Ukraine “On Citizenship of Ukraine” does not provide for the possibility of a child born on the territory of Ukraine from foreigners or stateless persons (hereinafter – stateless).
Therefore, the problem affects all seekers of protection in Ukraine, because the application for protection can be considered with further appeal in court for years. During all this time, people stay on the territory of Ukraine on legal grounds, which fundamentally distinguishes their legal status from those foreigners and stateless who are legally living in Ukraine and have all the relevant documents.
The only legal possibility to acquire the citizenship of Ukraine for a child of an asylum seeker, who was born on the territory of Ukraine, is currently left by Article 8 of the Law (on the territorial origin). At the same time, the practice of the CF “Right to Protection” (R2P) is such that units of the State Migration Service deny the applications of the parents of a child born in Ukraine, citing formal grounds. The refusal is motivated, for example, by the failure to submit an identity document by the applicant, although such a document may be kept in another territorial body of the Migration Service.
Thus, instead of efforts aimed at the actual prevention of statelessness among children, we see a tendency to narrow the possibility of acquiring Ukrainian citizenship by a child when there is a threat of statelessness.
For example, the Verkhovna Rada of Ukraine is currently considering Bill № 2590 on Amendments to Some Laws of Ukraine on Citizenship which proposes to make a similar requirement to Article 7 of the Law on the legality of residence of parents in Ukraine before the procedure for acquiring citizenship by the territorial origin of a child who would otherwise remain stateless  (Article 8 of the Law).
Position of the UN Committee on the Rights of the Child
Back in 2011, the UN Committee on the Rights of the Child recommended that Ukraine amend its legislation to legally and in practice guarantee the child’s right to citizenship and the right not to be deprived of it on any grounds and regardless of the status of the child’s parents. In 2020, Charitable Fund “Right to Protection” (R2P) within the coalition of NGOs  reported to the UN Committee on the Rights of the Child on the state of observance of children’s rights in Ukraine since 2011.
Once again, the problem of undocumented applicants for protection, the impossibility of their children to acquire Ukrainian citizenship due to the status of parents was also mentioned. In 2017 and 2020, with the participation and coordination of the R2P, reports were prepared and submitted within the framework of the Universal Periodic Review (UN instrument), where the situation of children seeking protection in the context of the threat of statelessness was analyzed as well .
In September 2020, during the UN Committee on the Rights of the Child expert consultations with the public, the issue of the threat of statelessness among children seeking protection in Ukraine was also raised. The Committee was interested in the number of children of asylum seekers born in Ukraine who do not have citizenship. The CF “Right to Protection” representatives noted that there is no official data on that matter, though there are many families with children among the beneficiaries of the R2P whose citizenship has not been determined or they are at risk of statelessness.
In October the Committee raised several questions based in particular on information from the public and international organizations to the Government of Ukraine , including the need to reiterate the measures to prevent the statelessness among the children of undocumented persons and asylum seekers, stating that every child must receive the identity documents. So the dialogue on this issue can now be considered open, still, the problem is not solved yet.
So, how should it be?
Let’s return to the conventional provisions. It is stipulated that the State grants its citizenship to a person born in its territory who would otherwise be a stateless person.
According to General Comment №17 of the UN Human Rights Committee , States are obliged to take all the appropriate measures, both internally and in cooperation with other States, to ensure that any child is granted citizenship at birth.
And the United Nations High Commissioner for Refugees (UNHCR) Statelessness Guidelines  prescribe that the phrase “would otherwise be stateless” means the child will become stateless if only the state where he or she was born will not give this child citizenship.
It is further stated that in order to determine if a child would otherwise be stateless, it is necessary to determine whether the child has acquired the citizenship of another state – the citizenship of the parent state (jus sanguinis principle) or the state in which he/she was born (jus soli principle). There is no one-size-fits-all standard for evaluating evidence if a child will otherwise become stateless, but a child may be stateless as a result of a wrong conclusion.
On the one hand, the 1961 Convention on the Reduction of Statelessness does not oblige the State to automatically grant citizenship to all children born in its territory. On the other hand, in each individual case, the competent authority must determine whether the child will become stateless in the event of a refusal to grant him or her the nationality of the State concerned.
This conclusion provides an answer to the question of why stateless children are born in Ukraine: before denying the applicant (s) the right to acquire citizenship by a child born to foreigners and stateless in Ukraine, the risk of statelessness for this child is not investigated by the competent authority. Children with uncertain citizenship born on the territory of Ukraine to foreigners, stateless or undocumented persons are not registered.
To reduce the number of stateless children in Ukraine, it is also advisable to exclude the dependence between the legal status of a child’s parents and the acquisition of citizenship by the birth of a stateless child (Article 7 of the Law of Ukraine “On Citizenship of Ukraine”) and of course to prevent the introduction of such a requirement to Article 8 of the Law of Ukraine “On Citizenship of Ukraine”.
- Although the draft was not submitted by the Government and was not prepared by the Ministry of Internal Affairs and the State Migration Service (SMSU), the SMSU provided an official position to the relevant Parliamentary Committee, in which no comments were submitted against the amendments proposed to Article 8.
- Items 59, 60 of the report. The report is available on the OHCHR website at https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/UKR/INT_CRC_NGO_UKR_43236_E.docx
- Joint Submission to the Human Rights Council at the 28th Session of the Universal Periodic Review (Third Cycle, 6-17 November 2017) ”- https://index.statelessness.eu/sites/default/files/Joint%20Submission%20to%20the%20Human%20Rights%20Council%20at%20UPR28%20-%20Ukraine%20%28Mar%202017%29.pdf State of Observance of the Rights of Refugees, Asylum Seekers and Stateless Persons in Ukraine https://drive.google.com/file/d/1Wzb9oYJduyjbOZ33LUY9fCAm8mHT5m4H/view
- List of the questions of the Committee on Human Rights is available on the OHCHR official website https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhskqYO9zSBmqrbZ%2fIIWaof%2fzNUOu18KHiy9vURvq824l8QE9pdGuUTfjLxzP8rW3CE3oXSq4SqYeQrjAX5YTMW8pSkdK1Ot3W2yULNpL46jlD
- Article 24 of the International Covenant on Civil and Political Rights https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
- Available at https://www.refworld.org/docid/50d460c72.html