14 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION The following sub-sections will address in greater detail, the following nine key issues of concern regarding detention of stateless persons: • Identification and determination of statelessness; • Decision to detain and arbitrary detention; • Procedural guarantees; • Removal and re-documentation; • Alternatives to detention; • Children, families and vulnerable groups; • Length of detention; • Conditions of detention; and • Conditions of release and protection from re-detention. International legal instruments, case law, soft law, Handbooks, guidelines and various other relevant documents will be analysed in greater depth in the following sections. 2.1 IDENTIFICATION & DETERMINATION OF STATELESSNESS The obligation of the state to identify stateless persons within its territory or subject to its jurisdiction is implicit to international human rights law. With regard to state parties to the 1954 Convention, the implicit obligation to identify stateless persons is well established. Regarding states that are not party to the Convention, the obligation stands to the extent that it is necessary to identify stateless persons in order to fulfil other human rights obligations. For example, it may be that the obligation to not discriminate can only be fully respected and fulfilled if stateless persons are identified so as to ensure they are not directly or indirectly discriminated against. Certain contexts draw out this obligation more pointedly than others, none more so than immigration detention. Indeed, statelessness is a juridically relevant fact to immigration detention, as the very nature of statelessness makes stateless persons extremely difficult to remove, and detaining persons when there is no reasonably prospect of removal is most likely to render the detention arbitrary. Thus, while few European countries have statelessness identification procedures in place, fewer make such procedures easily accessible to stateless detainees and none routinely conduct statelessness determination as part of the decision making process to detain or not. The failure to do so can be regarded as a procedural and substantive gap, particularly when it results in stateless persons or those at risk of statelessness being arbitrarily detained. United Nations ICCPR Article 9(1) states that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. While the ICCPR does not explicitly state the grounds for detention permissible in the immigration detention context, as explained under section 2.2 below, the concept of arbitrariness has been developed in a manner which prohibits detention that inter alia does not fulfil a legitimate purpose and is not proportionate or reasonable. The examination of whether a person is stateless or at risk of statelessness is a juridically relevant fact in making the decision to detain in a manner which complies with Article 9(1). The UNHCR Handbook on Protection of Stateless Persons recognises that the 1954 Convention Relating to the Status of Stateless Persons does not “prescribe any mechanism to identify stateless persons as such.”15 However, the Handbook makes it clear that it is implicit in the Convention that states have a duty to identify stateless persons in their territories, in order to “provide them appropriate treatment in order to comply with their Convention commitments.”16 Thus, all state parties to the Convention, should have such a procedure in place. The Handbook also clarifies that statelessness is a juridically relevant fact in relation to the protection against arbitrary detention – under Article 9(1) ICCPR – and various other fundamental rights.17 The Handbook emphasises that “the absence of status determination procedures to verify identity or nationality can lead to prolonged or indefinite detention” of stateless persons, and therefore, statelessness determination procedures are an essential mechanisms to reduce “the risk of prolonged and/or arbitrary detention.”18 Furthermore, the status of persons who are waiting for statelessness determination “must also reflect applicable human rights such as protection against arbitrary detention and assistance to meet basic needs.”19 It is also important for any determination procedures to include “a mixed assessment of fact and law” since statelessness cannot be determined through a legal analysis of nationality laws alone. The Handbook points out that “the definition of a stateless person requires an evaluation of the application of these laws in practice, including the extent to which judicial decisions are respected by government officials”20 Council of Europe Article 5(1) ECHR entrenches the right to liberty and security of the person and prohibits deprivation of liberty. It also provides for exceptions which must be in “accordance with a procedure prescribed by law.” Accordingly, Article 5(1)(f) only allows for immigration detention in pursuit of one of two legitimate objectives; to prevent unlawful entry or to enforce removal. Immigration detention for any other purpose, or where a legitimate purpose cannot be fulfilled, will be arbitrary. Thus, the lack of nationality of stateless persons, and the ensuing difficulties associated with removal are juridically relevant facts to the decision to detain. Because of this it is important to identify stateless persons before they are detained. The Auad v Bulgaria case before the ECtHR addressed an alleged violation of Article 5. Mr. Auad – a stateless Palestinian – had been detained in Bulgaria, but due to his statelessness, could not be removed.21 The Court found that “the only issue is whether or not the authorities were sufficiently diligent in their efforts to deport the applicant”.22 The failure of the state