26 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION the return of an undocumented trafficking victim by issuing travel documentation or authorisation. Finally, Article 16(7) prohibits the return of a child victim to a state where he/she would be at risk or in case where said return would not be in his/her best interest.121 Victims of torture or cruel, inhuman or degrading treatment or punishment Article 1 of the European Convention on Torture states that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment “shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.”122 European Union Article 3 of the EU Returns Directive defines the following groups as vulnerable: minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Article 14(1)(d) of the EU Returns Directive mentions that removal proceedings should take into account the “special needs of vulnerable persons.” Children and families Article 16(3) of the Returns Directive requires that “particular attention shall be paid to the situation of vulnerable persons.” Article 5 requires member states to take into account “(a) the best interests of the child; (b) family life” when implementing the Directive. Furthermore, Article 10(1) which addresses the return and removal of unaccompanied minors, states that before making any decisions relating to an unaccompanied minor, “assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child.” Article 10(2) of the Directive states that before removing an unaccompanied minor, the authorities “shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return.” 123 limited duration) to trafficking victims who cooperate with the authorities in criminal proceedings against human traffickers for the duration of the proceedings.125 However, such residence permits are conditional upon cooperation with the authorities in criminal proceedings and are valid only for the duration of the proceedings, leaving victims without any assurance regarding their residence in the country hosting them. Asylum seekers According to the EU Returns Directive, it is permitted for Member States to “return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of nonrefoulement.”126A non-national who has applied for asylum in an EU Member State “should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force.”127 EU Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status provides under Article 7(1) that asylum seekers “shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision” on their status as refugees or not; however, said right to remain does not constitute any form of entitlement to a (permanent) residence permit. Article 18(1) of the Directive prohibits Member States from holding an individual in detention simply because he or she is an asylum seeker. Article 18(2) of the Directive requires a speedy judicial review in cases where an asylum seeker is being held in detention. Finally, Article 21 of the Directive requires Member States to allow UNHCR to access all applicants for asylum, including those that are being held in detention.128 Other resources According to the International Detention Coalition, children should never be detained. If detained, their best interests should be paramount, they “should not be separated from their caregivers and if they are unaccompanied, care arrangements must be made.” Furthermore, age assessments should be undertaken as a last resort and with the child’s consent by professionals in a way that “is culturally sensitive and gender appropriate.” 129 According to ERT Detention Guideline 49 Article 11(2) of the EU Reception Conditions Directive requires children to be detained Only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.124 Victims of human trafficking The purpose of Council Directive 2004/81/EC of 29 April 2004 is to set the standards for granting residence permits (of Stateless children should not be detained. Stateless children should at all times be treated in accordance with the UN Convention on the Rights of the Child, including the principle of the best interests of the child. Children should not be detained because they or their parents, families or guardians do not have legal status in the country concerned. Families with stateless children should not be detained and the parents of stateless children should not be separated from their children for purposes of detention. In exceptional circumstances where children are detained because it is in their best interest, they should not be detained with adults unless it is in their best interest to do so.