Identifying the Stateless in the United Kingdom • 443 12 13 14 15 16 17 18 Philippe De Bruycker and Evangelia (Lilian) Tsourdi, ‘The Challenge of Asylum Detention to Refugee Protection’ (2016) 35(1) Refugee Survey Quarterly 1. European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) ETS No 5 (ECHR) art 5(1)(f); Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 (Return Directive) para 15; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 9(1); American Convention on Human Rights ‘Pact of San José, Costa Rica’ (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 7(2). See eg Human Rights Committee, ‘General Comment No 35: Article 9 (Liberty and Security of Person)’, UN doc CCPR/C/GC/35 (16 December 2014) para 15; UNGA, Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings before a Court, UN doc WGAD/CRP.1/2015 (4 May 2015) para 28. Return Directive (n 13) art 15(5)–(6); ENS, ‘Protecting Stateless Persons from Arbitrary Detention: A Regional Toolkit for Practitioners’ (2015) 27. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ‘Immigration Detention’ (CPT/Inf(2017)3, March 2017) 2. Jane McAdam, ‘Human Rights and Forced Migration’ in Elena Fiddan-Qasmiyeh and others, The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press 2014) 210. See ICCPR (n 13) art 9; ECHR (n 13) art 5. In the UK, the Human Rights Act 1998 domesticates art 5. Vivian Tan, ‘UNHCR, Civil Society Warn of Growing Detention Problem in AsiaPacific’ (UNHCR News, Bangkok, 11 November 2013) <https://www.unhcr.org/news/ latest/2013/11/5280dc409/unhcr-civil-society-warn-growing-detention-problem-asia-pacific. html> accessed 8 March 2020; UNHCR, Beyond Detention. Progress Report 2018 (2019). Downloaded from https://academic.oup.com/ijrl/article/32/3/440/6065591 by guest on 04 July 2025 migrants are treated. Even if the system does allow the possibility of filing immigration applications to obtain lawful status, in practice this is difficult.12 From the perspective of international law, immigration detention in and of itself is not considered arbitrary. However, compliance with the fundamental principles of human rights demands that detention is resorted to only in exceptional cases and on grounds established in national law – moreover, only for a specific period of time and after less intrusive alternatives have proven inadequate.13 In particular, human rights standards regarding indefinite detention specify that the overall length of its possible duration must be set by law.14 However, there is no international provision concerning what the maximum time limit for detention should be. The EU Return Directive sets it at six months (extendable in exceptional circumstances to 18 months).15 Additionally, detention decisions must be assessed on a case-by-case basis and must not result from a blanket policy.16 Human rights standards also necessitate periodic review of detention decisions by the judiciary or other authorities to ensure that they are applicable for the shortest possible period only.17 Legal advocates and UNHCR alike have sought to ensure that immigration detention is understood as a measure of last resort.18 Nevertheless, immigration detention is rife with access to justice issues. Research has shown that the high degree of complexity