status or lack of necessary immigration permits cannot be used as a general justification for the detention of such
persons.191
Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”), guaranteeing the right to liberty and
security of person, prohibits unlawful as well as arbitrary detention. For detention to be lawful it must be regulated
by domestic law, preferably with maximum limits set on such detention, and subject to periodic and judicial review.
For detention not to be arbitrary, it must be necessary in each individual case, reasonable in all the circumstances,
proportionate, and non-discriminatory. Indefinite as well as mandatory forms of detention are arbitrary per se.192
Detention is therefore a measure of last resort and can only be justified where other less invasive or coercive
measures have been considered and found insufficient to safeguard the lawful governmental objective pursued by
detention. Alternatives to detention – from reporting requirements or bail/bond systems to structured community
supervision and/or case management programs – are part of any assessment of the necessity and proportionality
of detention. General principles relating to detention apply a fortiori to children, who as a rule are not to be
detained in any circumstances.193
Danish law contains no express reference to the detention of stateless persons or their freedom of movement. If a
person who is stateless is detained, then this is done on grounds independent of his/her statelessness.
3.4.1.2 Expulsion
Article 31(1) of the 1954 Convention prohibits contracting States from expelling a stateless person lawfully in the
territory save on grounds of national security or public order. A stateless person is also entitled to submit evidence
to clear him- or herself, to appeal a decision on expulsion and be represented by a person specially designated by
the competent authority. In addition, a stateless person is entitled to a reasonable period to seek legal admission
into another country. The State implementing the expulsion can apply internal measures as necessary.194
As mentioned above in Chapter 3.2, Denmark has made a reservation to Article 31 in the 1954 Convention, which
states that “Article 31 shall not oblige Denmark to grant to stateless persons a status more favorable than that
accorded to aliens in general”.195 Consequently, there are no specific provisions in Danish legislation prohibiting
the expulsion of stateless persons. At the very least stateless refugees need to be protected against expulsion in
accordance with Article 32 of the 1951 Convention relating to the Status of Refugees and human rights law.
3.4.2 Rights of persons recognized as stateless
Stateless persons are entitled to the protection of the 1954 Convention.196 The 1954 Convention, along with
applicable standards of international human rights law, grants stateless persons a core set of rights. Some provisions
191
UNHCR, Handbook, para 112 (citing the UN Working Group on Arbitrary Detention, Report to the Human Rights Council, A/HRC/13/30, 18
January 2010, http://www.refworld.org/docid/502e0fa62.html. In relation to stateless persons specifically, please see UNHCR Executive
Committee Conclusion 106 (LV1) of 2006 on identification, prevention and reduction of statelessness and protection of stateless persons,
http://www.unhcr.org/453497302.html which “Calls on States not to detain stateless persons on the sole basis of their being stateless and
to treat them in accordance with international human rights law… ” See ibid generally, paras 112-115.
192
UNHCR Handbook on Protection of Stateless Persons, para. 112.
193
Ibid, para. 113.
194
Article 31(2 – 3) of the 1954 Convention.
195
Ibid, Article 31(1): ‘The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or
public order.’
196
This assumes none of the three exclusion provisions under Article 1(2) applies.
UNHCR Representation for the Nordic and Baltic Countries
51
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