16 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION United Nations ICCPR Article 9(1) protects the right to liberty and security of person, prohibiting arbitrary arrest or detention. Principle 2 of the UN General Assembly’s Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that any form of deprivation of liberty can only be carried out in accordance with the provisions found in the law and by officials of the law or other authorised persons.29 In the landmark case of A v Australia, the Human Rights Committee found that proportionality requires a legitimate aim, and this aim ceases to exist when removal is no longer an option. The Committee also stated that decisions to detain “should be open to review periodically so that the grounds justifying the detention can be assessed.”30 The absence of factors such as the risk of absconding or lack of cooperation are essential to determine whether detention is arbitrary or not. The Committee discussed the concept of arbitrariness, stating that it should “not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice.” The Committee also found that detention could be arbitrary if detention is not necessary “in all the circumstances of the case, for example to prevent flight or interference with evidence”31 and proportionality is essential in this context. In FKGA v Australia, the HRC established that “detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances and reassessed as it extends in time.”32 The Working Group on Arbitrary Detention, in its 2010 report, has stated that the principle of proportionality requires for detention to be the last resort, and there are constraints to such detention including “strict legal limitations” and judicial safeguards which must be in place. Proportionality also requires for detention to have a legitimate aim, which (in the context of removal) ceases to exist as soon as there is “no longer a real and tangible prospect of removal.” Furthermore, states must provide reasons to justify detention, including “the necessity of identification of the migrant in an irregular situation, the risk of absconding, or facilitating the expulsion of an irregular migrant who has been served with a removal order” among others.33 In its Handbook on Protection of Stateless Persons, UNHCR clearly establishes that the “detention of individuals seeking protection on the grounds of statelessness is arbitrary” since the very nature of statelessness “severely restricts access to basic identity and travel documents that nationals normally possess.”34 Being undocumented or not being in possession of the necessary documents cannot, according to UNHCR, serve as a justification of detention. Detention should always be the last resort and can be justified only when “other less invasive or coercive measures have been considered and found insufficient to safeguard the lawful governmental objective pursued by detention.”35 Council of Europe Article 5(1) ECHR sets out an exhaustive list of permissible grounds for detention. According to Article 5(1)(f), the detention of a person to prevent his/her entry into a country, or the detention of a person “against whom action is being taken with a view to deportation or extradition” is permissible. But the decision to detain such persons must meet the other requirements of non-arbitrariness as well. In Saadi v UK, the ECtHR stated that the list of permissible grounds for detention found under Article 5(1) ECHR is exhaustive, and “no deprivation of liberty will be lawful unless it falls within one of those grounds”.36 The ECtHR has developed the principle of non-arbitrariness to include various elements such as conformity with procedural and substantive requirements laid down by an already existing law;37 that legal provisions which provide for the deprivation of liberty must be clear, accessible and predictable;38 must not contain any element of bad faith or deception by the state;39 must genuinely conform with the purpose of the exceptions permitted by the relevant sub-paragraph of Article 5(1);40 and striking a balance between securing the immediate fulfilment of the objective, and the right to liberty.41 European Union Article 15(1) and 15(2) of the Returns Directive set the conditions for detention. Accordingly, states should detain a non-national only for the purpose of removal from the state’s territory, and only as long as detention is the last available option. Furthermore, detention can only be “ordered by administrative or judicial authorities” and be ordered “in writing with reasons being given in fact and in law.” Article 15(4) of the Directive provides that when “a reasonable prospect of removal no longer exists”42 detention is no longer justified. The ECJ, in its Mahdi case, examined the EU Returns Directive, in the context of extension of detention and stated that “detention and extension of detention are similar in nature since both deprive the third-country national concerned of his liberty in order to prepare his return and/ or carry out the removal process.”43 The Court stated that regarding the decision to detain, to prolong the detention or to release the person, the state must first ascertain “(i) whether other sufficient but less coercive measures than detention can be applied effectively in a specific case, (ii) whether there is a risk of the third-country national absconding and (iii) whether he is avoiding or hampering the preparation of his return or the removal process.”44 The ECJ stated that the requirement under Article 15 of the Returns Directive, that every decision must be adopted in writing with reasons of fact and law “must be understood as necessarily covering all decisions concerning extension of detention”45 and detention itself. In Kadzoev, the ECJ stated that in order to consider that there is a “reasonable prospect of removal” which legitimises detention, “there must, at the time of the national Court’s review of the lawfulness of detention, be a real prospect that the removal can be carried out successfully.”46 EU member states “must not hold a person in detention for the sole reason that he or she is an applicant for asylum.”47 Furthermore, the Court also held that Article 15(4) of the Returns Directive should be interpreted in a way