A REGIONAL TOOLKIT FOR PRACTITIONERS 1 21 European Union The EU Returns Directive recognises that EU states can return an illegally staying non-national; however, this is permissible only “provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.”84 Article 8(4) of the Directive states that if a state sees the need of using coercive measures to remove a non-national, “such measures shall be proportionate and shall not exceed reasonable force” and must be implemented with respect for the dignity and physical integrity of the individual in question. Article 19(2) of the European Charter of Fundamental Rights states that no person can be removed, expelled or extradited to a state where there “is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” In addition to the principle of non-refoulement, the principle of proportionality also comes into play when a foreign state is refusing to respond/re-document, or the host state is failing to make enquiries diligently, and the individual remains in detention. Other resources ERT Guideline 28 states that removal does not constitute a legitimate objective (and therefore detention pending removal would be illegitimate) in situations where: removal cannot be carried out within a reasonable time period; removal violates international legal obligations pertaining to the principle of nonrefoulement; removal violates the individual’s right to remain in his/her country; removal violates the individual’s right to respect for private and family life; or removal violates any other international human rights norms.85 The European Council on Refugees and Exiles (ECRE), together with other NGOs, issued a 2014 report titled “Point of No Return: The Futile Detention of Unreturnable Migrants.” This report too makes the connection between unreturnability, statelessness and arbitrary, lengthy detention. As the report points out, the consequence for stateless people can be that they are refused “legal residence in the host country yet return to their home country is impossible for reasons beyond their control.” One exception to this norm is Denmark, which grants a very small number of migrants that have been deemed unreturnable permission to stay in Denmark, on the grounds of their inability to return. Spain on the other hand, releases unreturnable detained migrants but does not issue them with any permission to stay legally in the country. The report also mentions that “The process of re-documentation can create a risk of persecution and mistreatment on return.”86 Bail for Immigration Detainees (BID) – a UK based NGO – has initiated a Travel Document Project that targets those held in immigration detention “with no immediate prospect of removal because they have no travel documents.” BID advocates for the improvement of “those aspects of the travel documentation process that are managed by the (UK) Home Office.” The Travel Document Project aims at helping individuals to apply for travel documents from the authorities of their country of origin. BID considers that helping detained individuals actively seek to obtain travel documents can be a way of showing “an individual’s efforts to cooperate with the documentation process, thereby also serving as evidence that they are unlikely to abscond if released.”87 2.5 ALTERNATIVES TO DETENTION Alternatives to detention (ATD) are not a legal term of art, but have traditionally been understood both in a narrow and broad sense. In the narrow sense, ATD correspond to a practice used where detention has a legitimate basis, in particular where a justified ground for detention is identified in the individual case, yet a less restrictive means of control is at the State’s disposal and should therefore be used. In the broad sense, ATD are a conceptual approach to migration governance that seek to prevent and limit punitive or restrictive responses to the complex social phenomena of migration, and instead seek opportunities for positive engagement, support, and community involvement. In relation to stateless persons, both the narrow and broad approaches to ATD are extremely relevant. The narrow one, to ensure that whenever removal is pursued for stateless persons, they are not subject to detention (which is likely to be longer than the less complex cases of removal), and the broad one to promote a more holistic, effective and rights based approach to dealing with irregular migrants who may be stateless or at risk of statelessness. As established above, for detention to not be arbitrary, it must be necessary and it must be a proportionate means of achieving the legitimate objective. The obligations of necessity and proportionality compel the state to only use detention as a last resort. Thus, alternatives to detention must always be explored by states, and implemented at the outset. In reality though, states largely tend to think of alternatives, only after removal has not been possible within a reasonable period time (i.e. detention is the first resort and alternatives the last) or as a discretionary ‘good practice’ to be implemented in relation to vulnerable groups. However, it is clear that implementing alternatives to detention is intrinsic to the very concept of non-arbitrariness. Therefore, states should do more to integrate and mainstream the option of alternatives to detention in all cases, before detention is considered to be necessary.