A REGIONAL TOOLKIT FOR PRACTITIONERS 1 31 The Practical Manual published by UNHCR, the Association for the Prevention of Torture (APT) and IDC on monitoring immigration detention states that unlike in the prison system, in the detention context it is not always easy to know when an individual will be released from detention. Detainees do not always know when they will be released, and whether “they will be released into the host community, or whether they will be required to return to their country of origin or former habitual residence, or indeed to return or travel to a third country.” The future is uncertain for them, and that makes it difficult for their support group – friends, family, legal advisors, civil society organisations, etc. – to plan for the post-detention phase. The Manual states that “it is therefore imperative that release, removal and deportation procedures are all managed respectfully, sensitively and humanely. Whatever the final outcome, the immigration detainee needs to be in a position to integrate into the host society or reintegrate into his/her country of origin or former habitual residence.” 176 Council of Europe In Amie and Others v Bulgaria, the ECtHR stated that the authorities should “consider whether removal is a realistic prospect, and accordingly whether detention with a view to removal is from the outset, or continues to be, justified.”177 When removal ceases to be a realistic prospect, release from detention is the next logical step. In Kim v Russia, the ECtHR held that the procedural guarantee of judicial review of the individual’s detention should “be capable of leading, where appropriate, to release.”178 The Court was concerned that upon release, Mr. Kim could be re-detained as his status in Russia had not been regularised, and therefore, the Russian government should prevent his re-detention as a result from his statelessness.179 In Okonkwo v Austria, the applicant contested the “necessity of the residence ban against him”180 since due to his statelessness, the residence ban meant he could not have a residence permit, and he had been detained on various occasions due to his inability to produce identification documents that certified his legal residence in the country. In Mikolenko v Estonia, the applicant’s expulsion became impossible, since his removal required his cooperation, and he was unwilling to cooperate. The Court found that the “applicant’s further detention cannot be said to have been effected with a view to his deportation as this was no longer feasible.”181 Since removal was no longer an option, release was the only option left. European Union Article 15(2) of the EU Returns Directive requires that “The third-country national concerned shall be released immediately if the detention is not lawful.”182 In Kadzoev, the ECJ determined that Article 15(4) and (6) of the Directive should be interpreted as requiring that after the maximum period of detention has expired, the person must be released immediately. Furthermore, the Court clarified that the individual’s lack of valid documentation, his/her inability to support him/herself or his/ her “aggressive conduct” should not be deterrent to his/her release.183 In Mahdi, it was determined that when the prospect of removal ceases to exist and therefore the detention is no longer justified, the individual “must be released immediately”184 Other resources According to the International Detention Coalition, in its Handbook for preventing unnecessary immigration detention, it is essential for any detention system to “provide legitimate avenues for eligible detainees to be released to a communitybased alternative”. “Avenues for release” provide detainees with tangible opportunities to apply and be considered for release, and are “often intertwined with the process of regular and ongoing judicial review.”185 Global Detention Project researchers have noted that legal gaps and practices in some European countries leave irregular migrants and stateless persons unprotected from re-detention as they often are released without a residence permit which leaves them in a legal limbo. There is a need for official statistics on this practice as re-detained individuals risk being detained for much longer periods than the legal limits in place. In Spain, “Because the law is not explicit about the legal status of people who have been released when they reach the 60-day detention limit, former detainees are under threat of re-detention. This would contravene another Article in the law which provides that re-detention under the same judicial order should not occur (Aliens Act, Article 62.2).”186 In Ukraine, “Some observers have pointed to detentionrelated gaps in the new law, including its failure to prohibit the common practice of re-arresting migrants upon release and detaining them again for the maximum period allowed.”187 ERT Detention Guideline 42 provides that once it is evident that the administrative purpose of the detention – removal – cannot be achieved within a reasonable period of time; or that the grounds for detention are no longer valid; or upon the expiration of the maximum time limit for detention, the detainee should be released. ERT Detention Guideline 55 provides that the detaining State’s obligations towards the stateless detainee do not cease after his/her release, and therefore “Special care should be taken to address the vulnerabilities of stateless persons who are released from detention and to ensure that they enjoy all human rights which they are entitled to under international law.” Such obligations towards released former detainees continue for as long as the person is in the state’s territory or subject to its jurisdiction. Guideline 56 requires that stateless detainees who have been released are “provided with appropriate documentation and stay rights suitable to their situation” as required by Article 27 of the 1954 Convention Relating to the Status of Stateless Persons. Guideline 57 states that released stateless detainees should be protected from destitution, and Guideline 58 provides that released detainees should “have access to healthcare, social welfare, shelter and primary education on an equal basis with nationals.” Guideline 59 states that released detainees should be allowed to work and be entitled to equal pay as nationals, and Guideline 60 establishes that “durable solutions”, including facilitated naturalisation should be found for stateless migrants.188