4.7. Remedies I: Establishing the desired outcomes A key part of planning strategic litigation is to prioritise the legal remedies desired, which helps to define how rights claims are constructed—and may also affect the choice of forum. In cases related to nationality and identity documents, it can be difficult to determine the appropriate claims and remedies. Typically, such cases involve many different issues and the consequential human rights violations that flow from lack of nationality and identity documents may be extensive— including repeated arrest and harassment by public authorities, indefinite detention, or deprivation of property and livelihoods; as well as exclusion from democratic rights, and access to public services including education and health care, housing and formal sector employment. It may be that framing the case about one of these consequential violations is the approach most likely to have traction in a particular forum. However, if the underlying causes of the consequential violations are nationality law and practice, then remedies that address these causes should be the priority for the legal case, where possible, as a part of a wider strategy for redress and reform. A detailed discussion of remedies will be needed as the legal arguments are constructed (u section 5.6: Remedies II: The detailed requests). But the planning process must also identify the desired—and possible—remedies, or much valuable time may be wasted, and initial submissions to the court may need to be complemented or corrected by later documents. Among the key considerations are: • Understanding and agreeing on the desired outcomes: The first priority is to understand what is the outcome that the clients want. However, the way clients express their desired result may not always align with the most effective legal argument. Moreover, while clients may highlight immediate concerns like lack of access to services or police harassment, the deeper issue could be the gaps in the law leading to the lack of recognition of their nationality. The connection between the remedies sought and the clients’ priorities must be clear to all concerned. • The decision to focus on law reform or policy change: Is it essential—or possible—to advocate for reform of the nationality law or related legislation, or would it be more realistic and sufficient to seek policy changes that can be achieved by the executive acting alone? In some cases, high-level legal reforms—such as gender equality in nationality transmission—can be the central goal of both litigation and wider advocacy. However, where such reforms are not required as a solution or not realistically possible to achieve through litigation, courts can be requested to order policy reforms such as improving access to civil registration procedures. • The best framing for the case: The narrative of the case is crucial as much inside as outside the courtroom (u section 5.1: Issue framing). What presentation of the problem is most likely to be persuasive for the court to order the proposed remedies? The selection of complainants also plays a role here (u section 4.6), in order to illustrate the specific impacts of the law or policy that are being challenged. The court cannot order a remedy if the relevant facts showing why it is needed are not presented together with the legal arguments. • Whether the case is on behalf of an individual or group. • The nature of the remedies to be requested from the court may also depend on whether the case is on behalf of an individual facing a specific legal issue or a broader group affected by systematic discrimination. In the former case, remedies can be tailored narrowly (which may also avoid political pressures on the outcome of the case); in the latter, there may be the need to seek amendments to a discriminatory legal framework, or a general reform of apparently neutral administrative procedures that have disproportionate impacts on certain groups. • Strategies to develop remedies to address group discrimination. • Often a group of people who face challenges with recognition of nationality also face general discrimination, for example in access to services, whether or not they have a recognised nationality and the necessary identity documents. The worst impacts of such discrimination are, however, felt by those who do not have identity documents recognising nationality. For litigation to assist their situation, there is a need to specify exactly which provisions of the law and its implementation in practice are causing problems, and for which categories of people—and therefore what changes are needed in each case. There may be the need to proceed pragmatically, first seeking resolution of cases that are relatively uncontroversial, or legally much more certain; and then moving on to a broader category of clients. ҽ How can litigation be sequenced, so that a likely success in securing remedies in an “easier” case will provide the foundation for those in more challenging legal circumstances? It may be necessary or helpful to divide a group of potential plaintiffs into sub-groups: even if all members of the larger group face discrimination on the same grounds (for example, race, ethnicity or religion), different categories may require different remedies. ҽ There can be risks to such an approach (u focus box B), but also the possibility of unblocking solutions in an incremental way. These choices must also be discussed with the groups affected, to consider how to avoid undermining solidarity among all those affected by discrimination in access to identity documents might by highlighting the distinctions among the broader group based on their existing documentation. 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 33