SAHNI ARTICLE 3.3.21 (WORD) (DO NOT DELETE) Spring 2021 Loss of Nationality Rights 5/6/2021 7:21 PM 129 The ECJ pointed out that it was not the Court’s role to dispute a Contracting State’s nationality laws. It reiterated that each country has the right to determine its nationality laws162 and “[u]nder international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality.”163 The UK had followed the correct implementation process to validate its laws. It had incorporated nationality rights in its domestic legislation and complied with notification procedures under European law.164 Ms. Kaur was not a British citizen nor a national of another Member State. How then could she avail of the inter-mobility benefits of an EU citizen? She could not freely enter, reside and work in any Member State including Britain. Therefore, Ms. Kaur was not entitled to freedom of movement rights throughout the EU. The Court rightly did not identify the applicant as an EU citizen. However, the judgment is incomplete for it neglects to consider the applicant’s statelessness status. Ms. Kaur was stateless as a direct cause of the UK’s biased nationality and immigration laws and policies. It is surprising that Kaur fails to observe the responsibilities of an EU Member State not to contribute to statelessness,165 specifically as the UK had voted in favour of passing the UDHR and ratified both the 1954 and 1961 Statelessness Conventions. These legislative measures alone were sufficient for the ECJ to examine the UK’s international law obligations even though the UK did not support the Community counterpart treaty. The UK never signed the 1997 European Convention on Nationality.166 Yet still, the Court should have acknowledged the statelessness issue in Kaur in view of the Convention’s Preamble which declares that the Council of Europe aims to avoid statelessness cases as far as possible.167 162. 163. Id. ¶¶ 15.1(1)(c), 19-21. Id. ¶ 19 (citing Case C-369/90 Micheletti and Others v. Delgación del Gobierno en Cantabria, 1992 E.C.R. I-4239 at ¶ 10). 164. Id. ¶¶ 20-25. 165. See U.N. Secretary General, The Problem of Statelessness, ¶ 67(15), U.N. Doc. A/CN.4/56 (May 26, 1952) (Paragraph 67(15) states: “The nationality laws of the United Kingdom and the Colonies are such that the possibilities of statelessness arising thereunder are reduced to the minimum. In particular, no person can be born stateless in the United Kingdom and the Colonies; and no person born within the United Kingdom and the Colonies can at any time become stateless by the sole operation of United Kingdom law.”) 166. European Convention on Nationality, Nov. 6, 1997, E.T.S. 166. 167. Id. at pmbl., art. 4(a)-(c), & art. 18. The reticence of the U.K. legal system and the ECJ to assess the applicant’s statelessness issue contrasts with the subsequent approach of the U.K. High Court in The Queen on the application of MK (a child by her litigation friend CAE) v. The Sec’y of State for the Home Dep’t, [2017] EWHC (Admin) 1365 [1], [4], [9], [13], [36]-[37], [42], [48]-[49]. The High Court held that a seven-year-old stateless child was entitled to acquire British citizenship under Paragraph 3 of Schedule 2 to the British Nationality Act 1981. The child was born in England. The jus soli principle did not apply to her as her parents were illegal aliens from India. However, the child was stateless by choice. She was stateless only because her parents had not registered her birth as per the Citizenship Act 1955 (India) as amended (emphasis added). Registration was mandatory to assume Indian nationality.