22 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN MALTA 2. 3. 4. 5. effective solutions. Accurate information is necessary in order to understand who the affected persons are, and how they are being treated. Malta should accede to the Convention relating to the Status of Stateless Persons of 1954 and the Convention on the Reduction of Statelessness of 1961, which provide part of the legal framework for the protection of the rights of stateless persons, as well as reducing and preventing statelessness. Malta should also fulfil its obligations by the stateless under international and regional human rights law, including obligations to not discriminate against and to not arbitrarily detain the stateless. Malta should establish a dedicated statelessness determination procedure. In order to build on lessons learnt, to maximise limited resources, and to capitalise on existing expertise, the Office of the Refugee Commission readily presents itself as a viable option for the responsible authority. In order to avoid abusive applications, appropriate information ought to be provided to applicants in order to clarify the purpose and implications of the procedure, including the possibility of identifying a country willing to engage in a return process. Any procedure should enshrine all necessary procedural guarantees, including access to information, legal aid, and effective remedy. Determination of statelessness in a dedicated procedure (see above) should unequivocally rule out detention, as it precludes the view to expulsion. This procedure should provide a possibility of regularisation of legal residence status of such persons and issuance of identity and travel documents. Accordingly, the law should set clear rules governing statelessness determination procedure providing inter alia, that everyone who wishes to request statelessness status can do so quickly and effectively. Malta should finalise the move from an immigration regime based largely on automatic detention towards one based on individual assessments, and bring Malta’s use of administrative detention in line with human rights standards. In particular, the circumstances facing stateless persons should be considered as a significant factors during the process of determining the lawfulness of immigration detention. The initial decision to detain should always be based on the individual circumstances and personal history of the person in question. Decisions should contain clear reasons why other noncustodial measures would be inadequate for the purpose and, in the light of existing alternative measures, there should be clear proportionality between the detention and the end to be achieved. In particular, when detention proceedings are carried out, state authorities should identify whether or not a person is stateless or at the risk of statelessness (inter alia due to the fact that a person claims to be from one of the countries known for generating statelessness) having in mind that the lack of appropriate documentation or presenting expired documentation should not per se justify the decision to detain and should not be equalled to a risk of absconding. Failure to do so is likely to render detention arbitrary. 6. Malta should ensure that detention is always used as a last resort, after all alternatives (starting with the least restrictive) are exhausted. Less restrictive measures must be shown to be inadequate before detention is applied. The choice of alternative to detention should be influenced by the individual assessment of the circumstances of stateless persons. 7. Malta should formalise the detention review procedure contained in the Returns Regulations, so as to more appropriately establish a transparent and accountable procedure that conforms to human rights standards. In this regard, the notion of “due diligence” in the context of return procedures, should be maintained as a key priority throughout detention – state authorities must be diligent enough to identify if people who they initially assessed as not being at risk of statelessness are now at risk – and act accordingly. Decisions to continue detention of a stateless person should always contain a detailed justification explaining what measures aimed at determining the nationality of the person in question were already taken, what the reaction of the diplomatic mission of the country contacted was and what the prospect of a successful return of this person to the country of origin/former habitual residence is. 8. In the case of failed asylum-seekers, particular attention ought to be paid to the relationship between the migrant and the presumed or claimed country of origin in order to ensure that where legal and/or practical returnability is not possible, detention is not resorted to. Furthermore, such individuals should be referred to the statelessness determination procedure. 9. Malta should raise the profile of statelessness and train those public authorities potentially engaging with this issue, in particular the Department for Citizenship and Expatriates Affairs. 10. Malta should conduct an internal assessment of those scenarios whereby Maltese law or practice related to, inter alia, citizenship, residence permits, and marriage creates or heightens risks of statelessness, and such gaps in the law and practice should be addressed. 11. Malta should ensure effective access to protection for stateless persons, through the provision of legal stay status and the formal recognition of their civil, political, economic, social and cultural rights.