A/HRC/25/28
domestic law. An important consideration with regard to the avoidance of statelessness
among foundlings relates to how States should respond if the child’s parents are identified
at a later date. Some domestic laws provide for the withdrawal of nationality previously
acquired under domestic law by a foundling where this situation arises.71 However, in
accordance with the child’s right to a nationality and the object and purpose of relevant
international standards, nationality acquired by foundlings may only be lost if it is proven
that the child possesses the nationality of another State.72 It should be seen as good practice
where States make this protection against subsequent loss of nationality that would lead to
statelessness explicit in their nationality laws.73
IV. Due process considerations
31.
To ensure that nationality regulations are not applied arbitrarily and relevant
safeguards against statelessness are implemented effectively, States should ensure that
adequate procedural standards are in place. In particular, decisions relating to nationality
should be “issued in writing and open to effective administrative or judicial review”.74
International law thus obliges States to provide for an opportunity for the meaningful
review of nationality decisions, including on substantive issues.75
32.
The practice of States varies on this point. Some explicitly safeguard the right to
appeal any decision on nationality.76 Other States provide for an appeal only with regard to
certain nationality decisions.77 Others deem all nationality decisions to be the exclusive
competence of the executive and not subject to review.78 The latter approach raises due
process concerns as this leaves people more vulnerable to an abusive application of the law.
33.
Where a person is subject to loss or deprivation of nationality and a review process
is available, lodging an appeal should suspend the effects of the decision, such that the
individual continues to enjoy nationality — and related rights — until such time as the
appeal has been settled. Access to the appeals process may become problematic and related
due process guarantees nullified if the loss or deprivation of nationality is not suspended
and the former national, now alien, is expelled. Similarly, if withdrawal of nationality
results in the loss of property rights, the individual may have to forfeit his home or
business, as well as other acquired rights — an interference which may be difficult to repair
if it is subsequently established that the loss or deprivation of nationality was unlawful or
arbitrary and must be reversed.
34.
In addition to providing for the possibility to appeal and related due process
guarantees, States should ensure that there is an effective remedy available where a
decision on nationality is found to be unlawful or arbitrary. This must include, but is not
71
72
73
74
75
76
77
78
14
Submission from Romania.
UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child's Right to Acquire a Nationality
through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012
HCR/GS/12/04, para. 60.
Submission from Niger.
A/HRC/13/34, para. 43.
Ibid., para. 44.
Submissions from Lebanon, Morocco and the United States of America.
Submission from Hebrew Immigrant Aid Society.
A 2010 comparative study of citizenship laws in Africa demonstrates, for example, that only just over
half the countries (30 out of 54 states) assessed provided for the right to challenge the denial or
deprivation of nationality in court: see Bronwen Manby, Citizenship Law in Africa: A comparative
study, 2010, table 6: Criteria for loss of citizenship,.