STATELESSNESS AND CITIZENSHIP IN THE EAST AFRICAN COMMUNITY proof of nationality is sought, that it may become apparent that the state concerned does not regard the person as its national. In particular: Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.351 For very many people in the groups highlighted as being at risk of statelessness in this study it is not exactly clear if they are stateless or not: they exist in a blurred zone between clearly having a nationality and clearly being stateless. It may be the case that some members of a community have some (but not all) documents related to nationality (just a birth certificate, just a national identity card, just an electoral card – but were rejected or never applied for a nationality certificate or passport), whereas others were never registered at birth and applications for all other documents have been rejected; others may have obtained documents by paying bribes to intermediaries, and others may have travelled to a different “home” country to obtain documents there because they cannot get them where they currently live (or because they prefer to keep that affiliation). Each person has his or her own narrative, and his or her own particular circumstances (of parentage, place of birth and childhood, marriage partner, habitual residence, autonomy of social status, access to connections and money) that will explain these outcomes – but among the groups highlighted in this study are certainly people who fulfil the definition of stateless person under international law. The importance of due process and transparency Tanzania’s exclusion of court review of decisions under the Citizenship Act has become unusual, and urgent to reform. However, the guarantee of a right to challenge decisions made under the act in the High Court would not in itself satisfy a requirement for due process and fairness in decision-making on acquisition and loss of citizenship. An application to the High Court for judicial review in the common law system is a highly expensive undertaking. What is needed is for the common law countries to borrow from civil law and introduce court adjudication of decisions around access to citizenship as a routine matter. Free legal assistance is also crucial in ensuring these systems are effective. Completely discretionary systems for deciding questions of nationality create major risks of statelessness, not necessarily for reasons of ill faith, but because they have enabled a paralysis in the process for people to change their nationality to that of the place where they have the closest connections. They also greatly favour people with money, lawyers and connections over the poor who do not have access to such assistance in navigating the application process. The introduction of comprehensive identification requirements for adults tends to make somewhat fluid rules in undocumented communities about who belongs immediately more rigid and centralised. This can have positive aspects in terms of increasing legal certainty, but also means that the rules around nondiscrimination in access to the status claimed, due process and fairness in the issue of documents, and protections against statelessness become much more important. The rules on how to determine nationality where it is in doubt should be laid down in law, and the regulations and administrative procedures to implement the law published and made easily available. It is, for example, unacceptable that guidance on the interpretation of the provisions on citizenship by birth in the Tanzanian Citizenship Act is not published, especially since this guidance appears to go against an ordinary reading of the law. Rules on the provision of evidence of entitlement to nationality from birth should apply to any person applying for documentation, not only members of certain ethnic groups. As recommended by the African Court on Human and Peoples’ Rights in the Anudo case discussed above, the burden of proof should be on the state to justify rejection of an application if a person has previously held documents recognising 351 84 Handbook, paragraph 37. UNHCR / September 2018