In a case against Russia, the European Court of Human Rights found that deprivation of nationality had been grossly disproportionate to the wrongdoing alleged (failure to include family members on an application to naturalise) and no national security grounds had been shown.323  The African Commission ruled in a case brought against Zambia on behalf of opposition politicians deported to Malawi on the grounds that they were not nationals and were “a danger to peace and good order”, that an exception to freedom of movement permitted by the African Charter in relation to “the protection of national security, law and order, public health or morality” does not pre-empt the right to have a case heard, and that the arbitrary removal of citizenship could not be justified.324 Arbitrary deprivation of nationality as persecution or inhuman treatment A number of national courts have held that deprivation of nationality in itself constitutes persecution for the purposes of the 1951 Refugee Convention or the prohibition on non-refoulement, although no regional or international body has yet ruled on this point.325 Most famously, deprivation of nationality by the US authorities was condemned by the US Supreme Court in 1958 as “a form of punishment more primitive than torture”.326 7.6. Acquisition of nationality based on habitual residence KEY MESSAGE While naturalisation remains highly discretionary in most countries, and there is limited international law assistance for arguments that an application for nationality based on long residence should be granted, there is a trend towards a more rights-based approach with regard to due process, supported by jurisprudence from some countries. • International law does not require any state to provide a general right for long-term residents not born on its territory to acquire nationality. This is an area where human rights norms have only made limited inroads on the discretion of states. Nonetheless, there appears to be a gradual strengthening of the principle that naturalisation should be at least made possible and even facilitated for stateless persons; while certain types of discrimination in naturalisation have faced disapproval from human rights treaty bodies.327 (For rights based on marriage u section 7.3 Discrimination based on sex and gender.) In case of stateless persons, Article 32 of the 1954 Convention relating to the Status of Stateless Persons provides (in similar terms to Article 34 of the 1951 Convention Relating to the Status of Refugees) that states parties “shall as far as possible facilitate the assimilation and naturalisation of stateless persons,” by such measures as expediting proceedings and reducing the costs of naturalisation.328 UNHCR has published guidance on the protection of stateless persons which includes discussion of measures to facilitate naturalisation.329 The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa does not include a similar provision on naturalisation. However, its requirement (Article II.1) that countries of asylum should use their best endeavours to “secure the settlement” of refugees who are unable to return home could be interpreted in the same way. Countries of Latin America and the Caribbean have made similar commitments.330 The Committee of Ministers 323 Usmanov v. Russia, Application no. 43936/18, European Court of Human Rights, judgment of 22 December 2020. Amnesty International v. Zambia,, Communication No. 212/1998, 5 May 1999, https://www.refworld.org/jurisprudence/caselaw/achpr/1999/en/96899, paras 50 & 52. 324 The principles and decisions in refugee cases at national level are extensively discussed in: Michelle Foster and Hélène Lambert, International Refugee Law and the Protection of Stateless Persons (Oxford University Press, 2019), chapter 5, “Statelessness as Persecution”; Hélène Lambert, “Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status”, International and Comparative Law Quarterly Vol. 64, no. 1 (2015), pp.1–37; Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart Publishing, 2016), chapter 6 “Persecution by Denial of Nationality”. 325 326 Trop v. Dulles, 356 U.S. 86, at p.101. Tamás Molnár, “Addressing Statelessness through the Rights to Equality and Non-Discrimination”, in Solving Statelessness, ed. Laura van Waas and Melanie Khanna (Wolf Legal Publishers, 2017), pp.225–58; supra n 302, Spiro, “A New International Law of Citizenship” supra n 286. 327 328 Convention relating to the Status of Stateless Persons, 1954, art 32. Draft Articles on the Protection of Stateless Persons and the Facilities for their Naturalisation, UNHCR, February 2017, https://www.refworld.org/legal/ modellaw/unhcr/2017/en/118198. 329 330 In 2014, the Brazil Declaration and Plan of Action committed the 28 signatories among states and territories in Latin America and the Caribbean to “facilitate the change of the migratory status of refugees from temporary residents to permanent residents and naturalisation processes, when so requested, through streamlined, accessible and low-cost procedures”, Brazil Declaration and Plan of Action: A Framework for Cooperation and Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean, Brasilia, 3 December 2014, https://www.acnur.org/ fileadmin/Documentos/BDL/2014/9865.pdf?file=t3/fileadmin/Documentos/BDL/2014/9865. 76 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