SAHNI ARTICLE 3.3.21 (WORD) (DO NOT DELETE) Spring 2021 Loss of Nationality Rights 5/6/2021 7:21 PM 127 Tanzania to restore Anudo’s nationality rights142 and amend the Immigration Act to guarantee a fair trial to jus soli citizens.143 These measures thus necessitate the State to comply with Article 15 of the UDHR. The legislative amendment obliges the State to make access to justice rights and remedies available to its population. The right of equal access to justice, or due process, permits applicants to exercise their substantial and procedural rights and exhaust all local administrative and judicial recourse.144 A general right of recourse is a fundamental protection for an individual. It must not apply on a selective or elitist basis. Rather, it, alongside the equal protection of the laws, must extend to all inhabitants that are physically present in a territory. The scope of application should not be confined to nationals or legal and permanent residents—but should encompass—nonnationals, temporary residents, irregular migrants, and illegal aliens. In Anudo the ACtHPR invoked Article 15 of the UDHR to recommend the restoration of nationality rights.145 In contrast, the European Court of Justice (ECJ) did not rely on Article 15 of the UDHR in The Queen v. Secretary of State for the Home Department ex parte Kaur146 to urge that the UK award nationality rights to a British Overseas Citizen (BOC), who was rendered stateless as a result of preferential UK legislation.147 The British Nationality Act 1981148 denied certain Commonwealth citizens, such as Kenyan born Asians, the right of abode in the UK without Home Department authorization.149 Since the ECJ did not even mention the UDHR or the ICCPR in the Kaur judgment, there was no possibility of relief for the Applicant. 142. 143. 144. Id. ¶ 132. Id. ¶ 132. Directorate-General for Internal Policies, Study for the PETI Committee, Effective Access to Justice, PE 596.818, at 11, 21-27 (Nov. 2017) https://www.europarl.europa.eu/RegDa ta/etudes/STUD/2017/596818/IPOL_STU(2017)596818_EN.pdf; see also Anudo Ochieng Anudo v. United Republic of Tanzania, No. 012/2015, Reparations, (Afr. Ct. on Hum. and Peoples’ Rts. Sept. 8, 2020), https://www.african-court.org/cpmt/storage/app/uploads/public/5f 5/b91/8e7/5f5b918e7bfcc346048602.pdf. (In paragraph 12 the Court observed that “the record also shows that the Applicant’s status as a refugee in Uganda has made difficult the communication with his Counsel as regards consultations on the Reply to the Respondent State’s response on and to provide the necessary information in that regard.” Accordingly, the Court correctly provided the Applicant with access to justice. In paragraph 13 the Court held that, “in view of the afore-mentioned exceptional circumstances and in the interests of justice, it is therefore appropriate to re-open pleadings in this matter.”). 145. Anudo Ochieng Anudo v. United Republic of Tanzania, No. 012/2015, Judgment, ¶ 76 (Afr. Ct. on Hum. and Peoples’ Rts. Mar. 22, 2018) 146. Case C-192/99, The Queen v. Sec’y of State for the Home Dep’t ex parte Kaur, 2001 ECR I-1237 [hereinafter Kaur]. 147. See Randall Hansen, The Kenyan Asians, British Politics, and the Commonwealth Immigrants Act, 1968, 42(3) THE HIST. J. (1999), 809 at 810, 815-17, & 832-33. 148. British Nationality Act 1981, c. 61, § 4. 149. Case C-192/99, The Queen v. Sec’y of State for the Home Dep’t ex parte Kaur, 2001 ECR I-1237, ¶¶ 11, 13.