A REGIONAL TOOLKIT FOR PRACTITIONERS 1 19 Other resources According to the International Commission of Jurists Practitioner’s Guide, “the requirement that the law governing detention must be accessible, precise and foreseeable” has important implications in the case of detained persons. The authorities are “required to take steps to ensure that sufficient information is available to detained persons in a language they understand, regarding the nature of their detention, the reasons for it, the process for reviewing or challenging the decision to detain.”67 According to the International Detention Coalition, detention is “one of the strongest uses of power by a government against an individual” and therefore any decision to detain should be regulated through “automatic, prompt and regular independent judicial review.” The use of Courts in order to review decisions to detain “establishes a system of independent and non-partisan oversight” and ensures transparency, which in turn ensures that the reasons for the decision to detain have been properly established by the decision-maker and that the individual is able to raise concerns regarding the decision to detain him/her. The individual should have access to legal counsel at all times.68 In a critique of the lack of guarantees available in the immigration detention context, the Global Detention Project argues that “the classification of immigration detention as administrative benefits states because it allows them to avoid providing immigration detainees with costly and time-consuming procedural guarantees that people receive during criminal proceedings.” Looking at standard fair trial guarantees to which persons incarcerated under criminal law are entitled, the GDP argues that “EU directives selectively incorporate criminal justice methods, imposing the trappings of criminal punishment while failing to provide necessary safeguards. Although they are formally labelled as administrative detainees, persons deprived of their liberty for status-related reasons may in fact be subject to punitive penalties that in some respects exceed those imposed on convicted criminals.”69 ERT Guideline 37 establishes that “stateless detainees should be entitled to the following minimum procedural guarantees: their detention must be ordered by and/or be subject to the prompt and effective control of a judicial authority, they shall receive their order of detention in written and in a language which they understand and this must outline the reasons for their detention”; they must be informed of their rights related to the detention order, including “the right to legal advice, the right to apply for bail, seek judicial review and/or appeal the legality of the detention. Where appropriate, they should receive free legal assistance”; they must be informed of the maximum time limit which they can be held in detention; and they must be provided with a handbook in a language which they understand and that contains information on all their rights and entitlements during detention. ERT Guideline 41 provides that the “administrative purpose behind detention should be pursued with due diligence throughout the detention period, in order to ensure that detention does not become arbitrary at any stage.” To avoid arbitrariness, detention should be “subject to automatic, regular and periodic review throughout the period of detention, before a judicial body independent of the detaining authorities.”70 2.4 REMOVAL AND RE-DOCUMENTATION Once a decision to remove has been made, the question of detention should come into play (removal being one of the legitimate objectives which can justify detention). The question of whether removal can be achieved in a reasonable period of time, in relation to stateless persons and those at risk of statelessness has already been addressed above. There are other elements of the decision to remove and of related redocumentation which require scrutiny nonetheless. For example, the detaining state should have rules in place that govern the process of re-documentation and/ or ascertain entitlement to nationality. Furthermore, the respective roles that the state and the individual should be expected to play and related time limits should be clearly articulated. The longer it takes to do so, detention is more likely to become unreasonable and disproportionate. Jurisprudence of the ECtHR makes it clear that states must demonstrate due diligence when making such enquiries, and UNHCR guidance confirms the need for a shared burden of proof. This is particularly important in detention contexts where individuals will likely be limited in their ability to make enquiries of foreign consulates or competent authorities in the country with which they have a strong link. One grey area is the manner in which responses (or lack thereof) from states to which removal attempts are being made, are recorded, interpreted and acted upon by the detaining/removing state. At all stages of interaction with a stateless person or a person at risk of statelessness, states must ensure that they do not inappropriately attribute nationality based simply on the individual’s country of origin/departure or other inadequate evidence, or contrary to the stated position of the country with which it is claimed that the individual has a nationality connection. It is equally incumbent on states to correct any erroneous attributions of nationality on an individual’s file as soon as this comes to light. States also owe individuals obligations following a failed attempted removal i.e. where an individual is not accepted by the receiving country. Depending on the circumstances of the case, this may impact on the question of statelessness and/or how the applicant’s nationality status should be recorded thereafter. International and regional law does not provide much guidance in terms of the above, but these are important issues, which would benefit from clarification and direction from Courts and Treaty Bodies. United Nations Article 7 ICCPR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Repeated attempts to expel a person to a country where his/her well-being is not guaranteed and where he/she could be subject