1. INTRODUCTION 1.1. Nationality, statelessness, identity documents, and human rights The right to a nationality is central to human rights, development, and democracy. As requirements to prove legal identity and nationality (or citizenship, the term also used in many national laws to cover the same concept) become increasingly pervasive, the possession of official identity documents—and the legal status recorded in those documents—has become ever more essential to a person’s ability to participate as a full member of society. Although international human rights treaties are stated to guarantee the rights established for “everyone”, with very limited exceptions where nationality is a pre-condition, legally recognised nationality is in practice foundational to the enjoyment of other human rights. Those without recognised nationality of any state—those who are stateless—are among the most marginalised people on earth. Without state acknowledgement of their existence and legal status, they can be subject to criminalisation, harassment, and detention, and are often denied basic rights such as education, health care, freedom of movement, the right to vote and take part in political life, and even access to justice and a fair hearing. Lack of recognised nationality causes and exacerbates poverty and exclusion, in extreme cases, it is also a threat to national or international peace and security. Those affected are disproportionately members of minorities: rules on access to nationality often disguise racial, ethnic, and religious discrimination that would not be permitted in other spheres of law. Statelessness may result from restrictive nationality laws, including those that are exclusively descent-based or discriminate on grounds of sex, race, ethnicity, or religion, or that do not comply with international law requirements to prevent statelessness based on a conflict of laws. It can result from discriminatory provisions or gaps in other related laws, particularly the laws on civil registration and those regulating marriage, adoption, and other statuses within the family. But statelessness can also stem from arbitrary or discriminatory application of laws that otherwise comply with international law; and simply from weak civil registration or identification systems, lack of access to consular assistance for migrants, or other administrative and practical barriers. Statelessness can also result from forced displacement and from conflicts that destroy archives and disperse communities that would provide evidence of a person’s connection to a place. It is often those people who appear to have a claim to two or more nationalities who are most at risk of statelessness. Even if they are nationals under the law, and dual nationality is permitted in the state of residence, perceptions of foreignness make navigation of administrative barriers more difficult, with demands for additional forms of proof of connection to the state of claimed nationality from members of certain communities. Where many people have no documents, the difference between those who are at risk of statelessness and those who are not is often a perception among politicians, or generally the authorities competent to determine nationality, that members of a particular group have closer connections to another country—even if these connections are many generations back, and there is no associated documentation of a person’s origins. It is, however, not necessarily the case that stateless people lack identity documents: indeed, in some contexts stateless people are hyper-identified, repeatedly enrolled in different registers of state and other agencies—but always with the status of non-citizens. It is also common for a person’s status to be unclear: for example, a person may hold some identity documents that suggest recognition as a citizen (for example a voter registration card), but have been refused others (such as a national identity card or passport). 1.2. Objectives and focus of this Guide Litigation has been an important tool in advancing the rights of stateless persons and creating systemic legal reforms. Successful cases have led to broader legal reforms, establishing international legal norms that constrain state discretion in nationality matters. By challenging state discretion in the grant of nationality, litigation has helped to shift the narrative, making real the human right to a nationality. This Guide, a collaboration between UNHCR and the Open Society Justice Initiative, is designed to support legal practitioners in using litigation to realise the right to nationality and achieve an end to statelessness. The Guide focuses on the specific challenges and considerations in relation to litigation on nationality and statelessness. It frames litigation as part of an endeavour to address the structural and institutional barriers to recognition of nationality, on behalf of groups or entire communities as well as individuals. The scope of the Guide is not restricted to litigation in favour of stateless persons but encompasses broader challenges in claiming the right to a nationality in the country where a person has the closest connections. It also addresses a person’s right to the documents necessary to show entitlement to nationality (notably birth and other civil status certificates), and the identity documents that are required to prove that a person is a national of a particular country (such as national identity cards, passports, and nationality certificates). 12 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S