Birth registration is a key way to prevent statelessness and ensure every child can acquire a nationality. Yet, some children in Europe still face the risk of statelessness due to persisting barriers to birth registration.
On 11 December 2019, the Government of Malta acceded to the 1954 Convention relating to the Status of Stateless Persons.
The 1954 Convention, which now has 94 parties, establishes a framework for the international protection of stateless people and is the most comprehensive codification of their rights.
2018 saw some improvement in Malta, but significant concerns about law, policy and practice on the protection of stateless people and prevention of statelessness remain.
The European Network on Statelessness (ENS) has worked with its member aditus foundation to research and compile comparative information on statelessness in Malta as part of the Statelessness Index – an online tool which allows instant comparison of how different countries protect people without a nationality.
Malta acceded to the 1954 Convention in 2019, but still provides very limited protection for stateless people, and is not party to the 1961 Convention. Maltese law provides some protections against arbitrary detention, but rights afforded to those detained for removal purposes are very limited. Malta has no mechanism to identify and determine statelessness, and no stateless protection status, although it did introduce a route to regularisation in 2018 for people refused asylum and unable to leave the country, who have lived in Malta for more than five years.
- There is a non-automatic provision in the Citizenship Act for children born stateless in Malta to acquire citizenship after five years' residence, provided that they have not been convicted of any offence against any State or sentenced to more than five years' imprisonment.
- There is no age limit in the provision and the legal status or residence of the parents has no bearing on the right to acquire Maltese citizenship of a stateless child born on the territory.
- However, there is no information available about how proof of the child/person's statelessness is required or evidenced, the provision is little known, and it does not seem to ever have been used in practice.
- There is a provision in law for foundlings to acquire nationality automatically.
- The law states that the ‘new-born infant’ shall be a national of Malta at the date of birth but it is unclear whether this would apply at a later age.
- The provision says ‘until their right to any other nationality is established’ so it may be that if the parents are later identified and they are nationals of a country that gives rise to a ‘right’ to nationality for the child, the child's Maltese nationality would cease making them potentially stateless until they apply for nationality. The reference to 'a right to nationality' could also be construed to mean that it is enough for a foreign national parent to be able to pass on their nationality in law for a foundling's Maltese nationality to be withdrawn. Whether there are practical barriers to acquisition of the foreign nationality may not be deemed relevant, entailing a risk of future statelessness.
- Dual nationality is permitted so a child adopted by foreign parents and acquiring another nationality would not automatically lose their Maltese nationality.
- The acquisition of Maltese nationality by an adopted foreign child is governed by a mix of law and policy. The Citizenship Act distinguishes between children over and under 10 years old. For children under 10, Maltese nationality is automatically acquired upon registration, but there is a risk of statelessness if an ascendant of the parent was not born in Malta, as Maltese nationality law requires both the parent and ascendant to be born on the territory. If the adopted child is older than 10, they can either rely on the same provision (though the inclusion of adopted children here is based on a policy decision rather than an explicit legal provision); or submit an application for nationality through naturalisation, where it is said to be policy to grant nationality in such cases, but, again, this is not set in law so there could be a risk of statelessness during the procedure.
- There is a provision in the Citizenship Act for Maltese nationality to automatically be conferred through ius sanguinis to children born to Maltese nationals either in Malta or abroad, but there are discriminatory limitations in the Act, which exclude children born to unmarried parents with a Maltese father.
- Under the limitations, in the case of unmarried parents, a child born in Malta on or after 1 August 1989 shall only become Maltese if the mother is a Maltese national, which leaves a risk of statelessness if only the father is Maltese and the mother cannot confer her nationality to the child, as long as the safeguard against children born stateless on the territory is not implemented in practice.
- Additionally, under these same limitations, children born abroad to an unmarried Maltese father and foreign mother on or after 1 August 1989 would also fail to acquire Maltese nationality, even if rendered stateless.
- Despite being ruled discriminatory by the European Court of Human Rights in 2011 (Genovese v. Malta), Maltese law still contains these limitations distinguishing between children born in and out of wedlock and between children born to a Maltese mother as opposed to a Maltese father when unmarried.
- There are also current cases being reported of Maltese fathers being required by the authorities to undergo paternity testing for their child's Maltese nationality to be recognised, even where they are married to the foreign mother of the child.
- It is compulsory for all parents, irrespective of nationality or legal status, to register the birth of their child within 15 days with the Public Registry office. This obligation may at times be difficult to meet, so in practice the timeframe is relaxed, and no penalties incur within the first weeks past the deadline. Late registration is allowed, with no cut-off date. If parents are unavailable, the duty falls on the doctor, midwife or any other person in attendance at the birth or in whose property the baby was born.
- All children are provided with certification of birth. The document provided at birth registration does not contain information about the child's nationality, but it does contain information about the parents and their place of birth. There is no legal framework to determine the nationality of a child at birth or afterwards.
- There are credible reports of births remaining unregistered due to lack of documentation or refusal of parents to register the child.
- There are no mandatory requirements to report undocumented persons to the immigration authorities.
- Identity Malta and Gov.mt provide clear and easy-to-understand information on birth registration, where to register, and services for birth registration (in English and Maltese) on their websites, but there are no proactive campaigns on birth registration.
- In 2018, Identity Malta opened an office at the main public hospital to facilitate birth registration.
- Malta acceded to the 1954 Convention relating to the Status of Stateless Persons in December 2019, but the Government has not implemented any other measures specifically aimed at reducing statelessness.
- Renunciation of nationality is only possible in cases where the person holds the nationality of another country, and a declaration should be approved by the Minister.
- Deprivation is provided for in law in certain circumstances. The competent authority is the Minister responsible for Maltese nationality, who must convene a Committee of Inquiry made up of specific decision-makers. In cases involving a custodial sentence of less than 12 years there is a safeguard against statelessness, but not in other cases. There is no legal aid and no right of appeal.
- NGOs have reported recent cases of withdrawal of nationality resulting in statelessness without any due process.