Litigating the right to a nationality

Blog
Bronwen Manby
/ 4 mins read

In November 2024, UNHCR and the Open Society Justice Initiative (OSJI) jointly published a new resource for those seeking legal remedies for statelessness: Litigating the Right to a Nationality: A Guide for Practitioners. Bronwen Manby, author of the guide, provides an outline of its contents.

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Two people, an adult and a child, smile while looking at a document - from the cover of Litigating the Right to a Nationality

A guide for practitioners

The Guide for Practitioners provides both advice on a structured approach to the particular challenges of representing those denied a nationality in court, and a ‘state of the art’ report on the current interpretation of state obligations to respect the right to a nationality under international and regional human rights law. At just under 100 pages, it is a reference work whose main intended audience is lawyers; but organisations considering involvement in litigation and who seek a sense of the risks, benefits and arguments may also find it useful as a resource.

The guide has a particular focus on ‘strategic’ litigation – that is, litigation that is embarked upon with the aim of changing law and practice as much as to assist an individual client – but it aims to provide resources to assist any litigation in this field. In particular, it hopes to assist potential litigants to navigate the obstacles thrown up by the fact that nationality law is often not only legally complex but also politically sensitive.

The origins of the guide lie in an evaluation commissioned by OSJI of fifteen years of work supporting strategic litigation to challenge discrimination and arbitrary denial of nationality and identity documents, before national, regional, and international courts. OSJI was keen that this evaluation should also provide the basis for an externally-focused document, sharing the lessons learned. UNHCR has supported the finalisation of the report, including hosting a consultation workshop with practitioners, in line with its mandate on statelessness. UNHCR has intervened in cases challenging statelessness and actively supports strategic litigation in this area.

Developing a litigation strategy

The guide is divided into two main parts. The first part considers how a litigation strategy should be linked to and nested within advocacy by a broad range of other actors, and analyses strategic choices in relation to questions such as the named complainants in a case, the forum in which a case is brought, the identification of the specific remedies to be requested from the court, and an analysis of the risks and benefits of litigation. It considers the specific challenges of representing stateless persons and those denied recognition of nationality, especially those who are living in what may be termed their ‘own country’, the place where they have the strongest connections but have no permanent legal status – in some case over multiple generations. Consequently, the guide includes a strong focus on the question of ‘framing’ the argument to be used in litigation: including the choice of portraying the central issue as statelessness.

The second part provides a detailed analysis of the treaties and other legal standards, jurisprudence and interpretative guidance that establish the analytical frameworks that might be relevant. The themes addressed include: the right of every child to acquire a nationality; the rules relating to discrimination based on sex or on race, ethnicity or religion; the prohibition on arbitrary denial & deprivation of nationality; the extent to which there is an emerging right to acquire nationality based on habitual residence or other strong connections to a country; the rules on state succession; and procedural barriers to the realisation of the right to a nationality, including the systems for birth registration and issue of identity documents. Finally, there is a section on consequential violations, including lack of access to essential public services, the right to family life, and freedom of movement and immigration detention.

Making global resources more accessible

An important contribution of the guide is to highlight the evolution of legal standards outside of the European or UN context. Both the ENS Litigation Toolkit on Statelessness for Legal Practitioners and especially ENS’s Statelessness Case Law Database were important resources for the development of the guide.

Less well known, however, are the contributions of the Inter-American and (especially) the African human rights system in relation to the right to a nationality; as well as decisions from national courts across many countries of the world. The guide aims to make all these resources more easily accessible by bringing them together under thematic headings that highlight the most recent developments in relation to each theme, in order to support litigation to uphold the right to a nationality in different jurisdictions around the world.

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