The most important challenge in litigating the right to a nationality, compared to other rights, is the degree to which states continue to assert that recognition and grant of nationality is a matter of sovereign discretion. Inroads have been made into this claim of a reserved domain at both national and international level, but the extent of the constraints continues to be hard-fought. Courts may be hesitant to challenge state decisions in administration of nationality; or explicitly restricted from doing so in national law. Compared, for example, to the prohibition on torture or the right to education, human rights bodies have a much less extensive body of case law defining the limits of state discretion and the nature of state obligations when it comes to acquisition, proof, and deprivation of nationality. National judges are likely to be unaware of the constraints that do exist in international law and need educating on recent normative developments, as well as on the use that may be made of international standards in domestic courts. Where the state argues that its sovereign discretion cannot be challenged, litigation must show either that the government is breaking its own laws, or that the impact of the law is unconstitutional in some way (for example because it is discriminatory on the basis of prohibited grounds such as sex, race or religion). In some jurisdictions there may be the possibility of invoking international norms directly before national courts. This section sets out some of the arguments that may be available to address these challenges. 5.1. Issue framing The choice of framing for a case should be part of a discussion on the place of litigation within a broader strategy and “theory of change”—a plan for how the changes desired are going to be brought about. The framing depends partly on the legal arguments that are available at the national and international level, partly on the political context, and partly on the wishes of the client. Litigation should be framed in a way that seeks to alleviate the anxieties that are always present about the boundaries of belonging. Can it be argued that the population excluded from recognition of nationality are “our” stateless persons, who lack identity documents only because of administrative failures or discrimination? Is the assertion of national security risk and punishment by the authorities back-to-front, meaning that the greater risk is that those excluded from nationality rights may take to crime or to rebellion; or that deprivation of nationality means that those affected will never be prosecuted and punished for their crimes? Alternatively, is there need for a statelessness determination procedure to resolve the situation of those who are in indefinite immigration proceedings—including detention— because there is no country to which they can be deported, meaning that they become a burden on society because they cannot regularise their status? Is naming the problem as statelessness helpful, or likely to further stigmatise an individual or group? Is it better to refer rather to the recognition of nationality for existing nationals who, as a matter of fact, lack documents to which they are legally entitled? Or is it better to focus on securing access to public services such as health care, education, or housing, with issuance of documents recognising legal identity and/or nationality as a necessary step? The issues are considered in greater detail, with citations to relevant cases and other sources, in u section 7: Legal arguments. Statelessness The ERRC has long worked to tackle the issue of undocumented Roma and their limited access to birth registration and identity documents. In 2017, we chose to call the problem by its true name—statelessness—rather than merely an administrative issue of lacking identity documents. By framing it as statelessness and highlighting its roots in discrimination, we shifted the responsibility onto the state to resolve the issue, instead of blaming individuals for not having the necessary documents or failing to register births 96 In many cases, the first choice is whether to describe the situation of a particular individual or group without recognition of nationality as “statelessness.” The advantage of framing a situation as statelessness is the stronger international law normative framework, whether the complainant has strong connections that should bring recognition or grant of nationality by a particular state, or requires protection as a stateless person. If it is accepted that a person is stateless, there are rights in international law that are not accorded to other non-citizens. In those countries where a statelessness determination procedure exists, an argument based on the statelessness of the applicant may also be the most effective route to a secure residence 96 Senada Sali, ERRC, February 2022. 36 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