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12. R (Begum) v Special Immigration Appeals Commission; R (Begum) v Secretary of State for the Home Department; Begum v Secretary of State for the Home Department [2021] UKSC 7, [2021] AC 765
- Author:
- Eric Fripp
- Publication Date:
- 07-2022
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- The decision of the Supreme Court represents yet another prompt to reflection asto the very wide provision for deprivation of British citizenship bytheSSHD undertheBNA 1981s 40(2). By making clear the paucity of domestic law restraints upon the SSHD, the decision may ultimately have the effect of moving attention to the question—which the Supreme Court did not address —of whether domestic law safeguards, if not reformed, might be found so insufficient as to fall short of the international law norm prohibiting arbitrary deprivation of nationality, which the European Court of Human Rights in recent cases has been willing to find applicable through the broader art 8 ECHRrights. That question looms over the future but will,for the moment,remain unresolved. It also raises important questions concerning the absence of protection from serious harms which may, given the technical nature of the statelessness definition, not be alleviated by protection from statelessness, and leaves to be resolved on the facts of future cases important issues of child law, including the international human rights protections of the CRC89.
- Topic:
- Law, Children, Citizenship, Courts, and Stateless Population
- Political Geography:
- United Kingdom and Europe
13. The South African Constitutional Court Decides Against Statelessness and in Favour of Children
- Author:
- Mihloti Basil Sherinda and Jonathan Klaaren
- Publication Date:
- 07-2022
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- Shrinking citizenship is of great concern for those facing the prospect of reduction in citizenship statuses,not from two to one but from some to none—ieto the status of statelessness. Research in South Africa has only recently begun to pay increased attention to the problem of childhood statelessness, itself only seeing sustained interest at the global level for just over a decade.39The DHA does not keep official statistics on statelessness, not mentioning the topic in its annual reports through 2015.40In 2017, one of the leading NGOs addressing the issue provided legal assistance to 92 children (half born in South Africa) with problems of statelessness or at risk of statelessness.41Following a wider human rights definition,rather than the narrower UNHCR approach, South African legislation is mostly in line with international legal standards on the prevention and reduction of statelessness, including for children.42However, the implementation of those laws leaves much to be desired due to the DHA’s tendency to support restrictive interpretations of the provisions in its regulations and policies.43Chisuseclarifies the principle of the statutory interpretive presumption against retrospectivity and its application to legislation in a complex regulatory framework,which could also beinterpreted to extinguish existing citizenship rights. When read in its fullness, the historical approach adopted by the Constitutional Court led to a persuasive decision, handing success to public interest litigants acting on behalf of those faced with adegree of statelessness. Especially when seen in the context of a shrinking bureaucratic regard for citizenship applicants, the Constitutional Court continues to place itself at the centre of the rights-regarding movement within South African citizenship law.44The decision confirms the trend in childhood statelessness cases wherein the lower courts have found against the DHA,45including that of a child born to two Cuban parents where Cuba refused to extend citizenship to the child (instructing the DHA toissue citizenship to the child); a child born to refugees and reaching the age of 18(holding that the DHA’s delay in formulating guidelines for applications was not a sufficient basis to deny children the opportunity for naturalisation); and children with an unmarried South African father and a foreign national mother (ruling that the children should be properly registered so that they could access South African citizenship)
- Topic:
- Children, Citizenship, Courts, and Stateless Population
- Political Geography:
- Africa and South Africa
14. Protecting checks and balances to save the Rule of Law
- Author:
- Eric Maurice
- Publication Date:
- 04-2021
- Content Type:
- Policy Brief
- Institution:
- Robert Schuman Foundation (RSF)
- Abstract:
- For half a decade, the Polish government has been reshaping the country's judicial system in a process described by the European Union as a "threat to the rule of law". Despite numerous Council of Europe reports and resolutions, several infringement proceedings and decisions of the Court of Justice of the European Union (ECJ), and the unprecedented activation of the so-called Article 7 procedure of the Treaty on European Union (TEU), the transformation of the judiciary into relays of political power has continued and accelerated since the Law and Justice Party (PiS) won a new term in 2019 and the reelection of President Andrzej Duda in 2020, pushing Poland to the limits of the European legal order.
- Topic:
- Government, European Union, Courts, and Rule of Law
- Political Geography:
- Europe and Poland
15. Reform of the European Court of Human Rights
- Author:
- Stefania Kolarz
- Publication Date:
- 08-2021
- Content Type:
- Special Report
- Institution:
- The Polish Institute of International Affairs
- Abstract:
- Protocol No. 15 to the European Convention on Human Rights and Fundamental Freedoms (ECHR), which entered into force on 1 August, was to improve the functioning of the European Court of Human Rights (ECtHR), including by accelerating the examination of cases. However, some of the changes made by it may have the opposite effect. The protocol does not solve the problem of overloading the ECtHR with incoming complaints. The reform should be thus continued by, for example, more effective resolution by states of systemic problems identified by the ECtHR.
- Topic:
- Reform, Courts, Jurisdiction, and European Court of Human Rights (ECtHR)
- Political Geography:
- Europe
16. TP v Minister of Home Affairs (Sentence No 9140, 22 April 2014) (Tribunal of Rome)
- Author:
- Paolo Farci
- Publication Date:
- 07-2021
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- There are two procedures to determine statelessness in Italy. One is under the competence of the Ministry of the Interior, which can certify, pursuant to the administrative procedure under art 17 of Decree of the President of the Republic No 572,1 the statelessness of applicants who are able to show: (a) a birth certificate; (b) documentation relating to residence in Italy; and (c) any document suitable for demonstrating statelessness. The other procedure is under the competence of the civil courts.2 This judicial procedure does not require applicants to provide evidence of their lawful status or residence and thus, it is the route followed by most stateless persons.3 The present case, TP v Minister of Home Affairs,4 concerns the latter route to statelessness determination and involves TP’s application to the Tribunal of Rome to recognise his status as a stateless person. This case represents an unusual example of a court using its inquisitorial powers to seek evidence in support of its ruling and, as such, it set a judicial precedent, which can assist the determination of similar proceedings. It was also the first time that a court found the Government of India’s practice regarding the treatment of Tibetans born in India to Tibetan parents amounted to a denial of nationality
- Topic:
- Law, Courts, Stateless Population, and Nationality
- Political Geography:
- Europe and Italy
17. Factsheet: Islam, Immigration, and the American Courts
- Author:
- Bridge Initiative Team
- Publication Date:
- 07-2021
- Content Type:
- Working Paper
- Institution:
- The Bridge Initiative, Georgetown University
- Abstract:
- The Naturalization Era (1790–1952) was a defining period for immigration and conceptualizations of citizenship in the United States. During this era, Muslim immigration and naturalization were limited by laws that barred or severely restricted immigration from Muslim-majority areas of the world and court rulings that reserved naturalization rights for white individuals. In the midst of the civil rights movement, the Immigration and Nationality Act of 1965 opened the doors to increased immigration from Muslim-majority countries. In April 2021, the US House of Representatives passed a bill titled the NO BAN Act, which would limit the ability of any US president to impose a travel ban on the basis of religion.
- Topic:
- History, Immigration, Naturalization, Slavery, Courts, Civil Rights, Nationality, African Americans, and Muslims
- Political Geography:
- North America and United States of America
18. Willing to kill: Factors contributing to mob justice in Uganda
- Author:
- Ronald Makanga Kakumba
- Publication Date:
- 11-2020
- Content Type:
- Policy Brief
- Institution:
- Afrobarometer
- Abstract:
- Mob justice is a form of extrajudicial punishment or retribution in which a person suspected of wrongdoing is typically humiliated, beaten, and in many cases killed by vigilantes or a crowd. Mob action takes place in the absence of any form of fair trial in which the accused are given a chance to defend themselves; the mob simply takes the law into its own hands (Ng’walali & Kitinya, 2006). Mob justice is not only criminal but also amounts to a violation of human rights (Uganda Human Rights Commission, 2016). Over the past decade, Uganda has seen a significant rise in the number of cases of mob justice. According to the Uganda Police Force’s (2013-2019) annual crime reports, 746 deaths by mob action were reported and investigated in 2019, compared to 426 in 2013, a 75% increase. “Mob kills 42 in 7 weeks,” the Daily Monitor (2019) reported in March 2019, citing police figures – an average of six lynchings a week. Homicides by mob action in Uganda occur mainly in response to thefts, robberies, killings, and reports of witchcraft (Uganda Police Force, 2018). According to the 2015 Afrobarometer survey in Uganda, one in six Ugandan adults said they took part in mob justice during the preceding year or would do so if they “had the chance.” This suggests that mob justice is not just a fringe problem in Uganda but commands attention and requires collective action. Why would a substantial number of Ugandans resort to taking the law into their own hands as an alternative form of “justice”? Analysts have pointed to a number of factors that might contribute to a willingness to engage in mob justice. One is a lack of trust in the formal criminal justice system to administer fair and timely justice. A 2005 study in Uganda showed that mob actions were often motivated by widespread suspicion or misunderstanding of the justice system, especially concerning the procedure of police bail, under which suspected culprits can be temporarily released before the court process (Baker, 2005). A study in southern Nigeria also reported that a lack of trust in the police was one of the motivations for the alarming incidence of “jungle justice” (Obarisiagbon, 2018). Research has also shown that personal victimization by crime can have a lasting impact on attitudes toward the police, the courts, and the criminal justice system overall (Berthelot, McNeal, & Baldwin, 2018; Dull & Wint, 1997; Koenig, 1980; Sprott & Doob, 1997), as can negative personal experiences with the courts (Olson & Huth, 1998; Kanaabi, 2004). Amid Uganda’s surge in mob justice, Afrobarometer findings tell us that popular trust in the police and courts has been declining while citizens’ perceptions of corruption in these criminal justice institutions has been rising. Statistical analyses show that a lack of trust in the police is associated with a willingness to engage in mob justice, while perceived corruption undermines trust and thus indirectly contributes to a willingness to join others in mob actions. Further, our analysis finds that being a victim of crime (physical assault), encountering problems in the court system, finding it hard to obtain police assistance, and having to pay a bribe to police or court officials are factors that make people more likely to say they would take part in mob action against suspected criminals. Based on these findings, we offer recommendations to mitigate Uganda’s growing problem of mob justice.
- Topic:
- Human Rights, Courts, Police, Justice, and Bribery
- Political Geography:
- Uganda and Africa
19. Citizen Commitment – How Fragile States in Sub-Saharan Africa can Thrive
- Author:
- Clement Mutambo
- Publication Date:
- 09-2020
- Content Type:
- Working Paper
- Institution:
- Council on International Policy (CIP)
- Abstract:
- Fragile states are nations whose institutions of governance are highly susceptible to corruption, deception, and bias. According to the Fund for Peace, the vast majority of Sub-Saharan Africa countries qualify as moderately to severely fragile states. Why? Because African institutions are weak and dysfunctional, and leaders manipulate their systems with impunity. If the fragility fiasco is to be changed, African people need to realize that neither their leaders nor international observations can fix the issue; only the people hold the power to determine their future. Despite the tumultuous conditions in many nations in the Sub-Saharan continent, there is hope. The recent Malawian election demonstrated that despite weak local institutions and inadequate support from the international community, change can be made if citizens unite and demand accountability for corruption and abuses of power. When Malawians realized the outcome of their late 2019 presidential election was rigged, they took matters into their own hands. Even though six international observers, including the United Nations Development Program, Southern African Development Community, European Union, and African Union, argued that the elections were free and fair, overwhelming evidence of ballot tampering suggested otherwise.
- Topic:
- Governance, Elections, Fragile States, and Courts
- Political Geography:
- Africa and Sub-Saharan Africa
20. Tracking the Implementation Gap Empirically Assessing the Translation of International Antislavery Commitments in Domestic Legislation Globally
- Author:
- Katarina Schwarz and Jean Allain
- Publication Date:
- 06-2020
- Content Type:
- Journal Article
- Journal:
- Statelessness & Citizenship Review
- Institution:
- Peter McMullin Centre on Statelessness, Melbourne Law School
- Abstract:
- The prohibition against slavery in international law is unique in several significant ways. First, it has been recognised by the International Court of Justice as a jus cogens norm carrying obligations erga omnes.1 That is to say, it is a norm of international law binding on all states, from which no derogation is permissible and violation of which attracts the legal interest of the international community as a whole entailing an obligation to cooperate to bring such a breach to an end.2Second, it represents the first universal effort enshrined in international law to influence the domestic legislation of all states on a normative question.3 Third, it is often seen as the first global human rights movement and the root of international human rights law, centring the concept of individual human dignity within the traditionally statist constructs of international law.4 And finally, given its importance at the international level, it is often presumed that its prohibition at the domestic level is already complete everywhere
- Topic:
- International Law, Slavery, Courts, Justice, and Stateless Population
- Political Geography:
- Global Focus