an individual is on a State’s territory, a determination of their nationality status may be the
only way to identify a solution to their plight.
Where an individual has made an application to be recognized as stateless, or if the
authorities are trying to determine whether or not an individual is stateless, States are
advised to refrain from removing them from their territory pending the outcome of the
determination process.
Statelessness determination procedures are to be formalized in law, ensuring fairness
and transparency. UNHCR’s Handbook on Protection of Stateless Persons provides
a comprehensive list of due process rights to be respected, including:
•
access to an interview;
•
interpretation assistance;
•
access to legal aid;
•
deadlines within which statelessness determinations must be made from the time
an application is filed;
•
a right to receive written reasons for a decision; and
•
a right to appeal a first‑instance rejection of an application.
Can a State detain a stateless person who does not have a legal stay?
Although the 1954 Convention does not explicitly require States to grant a person
determined to be stateless a right of residence, granting such permission would fulfil the
object and purpose of the treaty. Stateless persons who do not have the right to legally
remain in a country should not normally be detained. Individuals who are stateless often
lack identity documents, such as national identity cards or passports. Even if the country
of former residence has been identified, often that country will not immediately accept
the readmission of the individual. In these situations, detention should be avoided and
only be resorted to if clearly based on national legislation that conforms to international
human rights law. Alternatives to detention should be explored first, unless there is
evidence to suggest that the alternatives will not be effective for the individual concerned.
Stateless persons without a legal stay should be detained only after considering all
possible alternatives. In making the exceptional decision to detain, authorities should
determine whether detention is reasonable and proportional to the objectives to be
achieved. If judged necessary, detention should only be imposed in a non‑discriminatory
manner, be regulated by domestic law, preferably with maximum limits set on such
detention and subject to periodic and judicial review.
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