Spain’s record on accession to relevant international instruments is relatively good, having recently acceded to the 1961 Convention. However, it is not party to key regional instruments, including the European Convention on Nationality. Some data on the stateless population in the country is available, but there are gaps and inconsistencies, and data on stateless people held in immigration detention is not published. Spain’s statelessness determination procedure presents some elements of good practice, but there are also gaps. Access is facilitated to some extent, but it is not possible to apply from detention, the application must be made in writing in Spanish via a technical form. Legal aid is limited, there is no right to an interview and some protection may be granted during the procedure, but there are delays in access to social assistance. Positively, with the approval of Royal Decree 220/2020, applicants have access to the national reception system. If granted, statelessness status entails indefinite residence, a work permit, and most Convention rights, but naturalisation is not facilitated.
Stateless people may be at risk of arbitrary immigration detention in Spain, as there is no requirement that a country of removal is identified prior to detention, statelessness is not routinely identified in detention decisions, many more people are detained for removal than are actually removed, and there are barriers in practice to access to legal aid, interpreters and effective remedies. However, in many ways, Spain is an example of good practice when it comes to the prevention of statelessness. Children born in Spain who would otherwise be stateless acquire nationality automatically at birth, and refugee children born in Spain may naturalise after one year’s residence. Safeguards are in place to ensure foundlings acquire Spanish nationality, and that adoption does not present a risk of statelessness. Birth registration is assured regardless of parents’ status and legal deadlines, and appropriate procedures are in place regarding the child’s nationality. Spanish courts have recently published case law that positively reinforces children’s right to birth registration and to a nationality, including for migrant children born en route. Provisions on deprivation of nationality are in line with the 1961 Convention, but there is no safeguard against statelessness in case of deprivation of Spanish nationality of naturalised nationals.
Adam Ariche and Rubén Romero Masegosa, Fundación Cepaim