8 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION Detention According to UNHCR, “detention” is “the deprivation of liberty or confinement in a closed place” which the individual “is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities.” 9 Arbitrary detention Under international law, in order for detention to not be arbitrary, certain standards and criteria must be met. While there is no one source for these criteria, they have been developed over a period of time through the jurisprudence and authoritative statements of UN, regional and national Courts and human rights bodies. Analysis of these different sources and standards brings to light that detention would be arbitrary unless it is inter alia: “ (i) Provided for by national law; (ii) Carried out in pursuit of a legitimate objective; (iii) Non-discriminatory; (iv) Necessary; (v) Proportionate and reasonable; and (vi) Carried out in accordance with the procedural and substantive safeguards of international law.”10 According to UNHCR Guidelines, the term “arbitrariness” should be interpreted broadly to include not only unlawfulness, but also elements of inappropriateness, injustice and lack of predictability. To guard against arbitrariness, any detention needs to be necessary in the individual case, and proportionate to a legitimate purpose. Whether a depravation of the liberty is arbitrary will depend on the reasonableness of the detention in a particular case, as the word “arbitrary” implies a lack of reasonable justification.11 1.3 STATELESSNESS AND DETENTION IN EUROPE All stateless persons should enjoy the rights accorded to them by international and regional human rights law. Their rights should be respected, protected and fulfilled at all times, including in the exercise of immigration control. The circumstances facing stateless persons – including their vulnerability as a result of their statelessness and the inherent difficulty of removing them – are significant factors to be taken into account in determining the lawfulness of immigration detention. The process of determining identity and nationality status of those subject to removal proceedings is often complex and burdensome. Where the person is stateless or at risk of statelessness, their lawful removal is likely to be subject to extensive delays and is often impossible. Stateless persons detained for removal purposes are therefore vulnerable to prolonged and repeated detention. In some countries such detention can even be indefinite. These factors in turn make stateless persons especially vulnerable to the negative impact of detention. The emotional and psychological stress of lengthy, even indefinite periods of detention without hope of release or removal is particularly likely to negatively impact stateless persons. However, the development and practice of immigration detention throughout Europe has largely occurred without regard to the specific circumstances of stateless persons and the implications of international and regional human rights law on their detention. At present, the immigration laws, policies and practices of most European states do not sufficiently take into account the unique characteristics that set stateless persons apart from other migrants. This failure has created a protection gap, which is most evident in the context of immigration detention for the purpose of removal. Resultantly, stateless persons are doubly victimised: • Without (adequate) legal status, unable to work, receive healthcare, and access social support systems, stateless people in Europe are often undocumented, destitute, exploited, excluded and even criminalised. Thus, they are more likely to come into contact with state authorities – often for committing a petty crime, or working without valid documents – and are likely to be detained for the purpose of removal, sometimes after first having served a prison sentence for their crime. • In many countries, a growing and significant problem is that stateless migrants are held in immigration detention for long periods – sometimes indefinitely – simply because there is no country to return them to (or return them safely to). Thus, once detained, because of the significant barriers to their removal, their detention is likely to be arbitrary. • Breaking this vicious and discriminatory cycle of destitution and detention requires law and policy reform as a necessary first step. • The failure of immigration regimes to comprehend and accommodate the phenomenon of statelessness, identify stateless persons and ensure that they do not directly or indirectly discriminate against them often results in stateless persons being punished for their statelessness. • Furthermore, despite a range of international standards, there remains an acute dearth of effective national frameworks to identify and protect the stateless. As such there currently exists a significant gulf between notional protection provided under relevant legal standards and the actual realisation of this protection in practice. The lack of protection on the one hand, and the growth of the immigration detention industry on the other have left many stateless persons vulnerable to arbitrary detention in Europe. 1.4 THE INTERNATIONAL AND REGIONAL FRAMEWORKS PERTAINING TO STATELESSNESS AND DETENTION For states in the European continent, there are 3 relevant regional and international frameworks: the United Nations framework, the Council of Europe framework and the European Union framework. All European states are members of the United Nations, while the majority of European states – with the exception of Belarus – are members of the Council of Europe. Finally, within the 47 Council of Europe members, 28 states are members of the European Union. Thus, depending on the country, it is easy to identify which framework applies. Within each framework, different instruments may or may not apply, depending on whether the state in question is party to them.