A REGIONAL TOOLKIT FOR PRACTITIONERS 1 7 find in this toolkit, the reassurance they need that states are under obligation to treat them fairly and to protect them and the arguments they need to secure their rights. This toolkit, and other project outputs (such as the country reports) may thus be useful resources in efforts to challenge unlawful detention and secure release and stay-rights for detainees; to improve existing national law and policy and bring it in line with regional and international standards; and to provide guidance to make correct decisions to detain (or not), to release and to compensate those unlawfully detained. It should be noted that the majority of European states do not have a statelessness determination procedure, despite the fact that almost all European states are party to the 1954 Convention.4 As this toolkit will elaborate, arbitrary immigration detention is one of the potential consequences of the protection gap that emerges due to the non-identification of stateless persons. Thus, this toolkit is intended for use regardless of whether a country has acceded to the 1954 Convention and/or has a statelessness determination procedure in place, and indeed, encourages accession, the adoption of such procedures and their application to detention processes by all European countries. This toolkit is not intended (or at least not required) to be read cover-to-cover. Instead, it is meant to serve as a practical tool to assist practitioners respond to specific contexts and questions. Consequently, it has been structured to make it easy for the user to dip in and out of. Also as a result, there is some overlap and repetition (though minimised) between various sections of this toolkit, as these sections are interrelated to begin with. While the key issues of concern have been selected to highlight and cater to the specific context of statelessness, some of these sections (such as on conditions of detention, vulnerable groups etc.) would equally apply to non-stateless detainees. This is because we have aimed to provide a holistic tool to protect stateless persons from arbitrary detention – a tool which addresses their unique vulnerabilities as well as those they share with all detainees in general. As a result, this toolkit may also serve as a useful resource on arbitrary detention in general, regardless of whether statelessness is a factor or not. Information is categorised by issue (as per the table of contents) and by type of resource/jurisdiction (United Nations, Council of Europe, European Union and other resources). Depending on the country and situation in question, the user may identify which sections to look at. An extensive bibliography is included at the end of the toolkit, for users who may wish to dig deeper into a particular issue. 5 A table of relevant Treaty Body ratifications is also annexed to this toolkit for ease of reference. Finally, this toolkit has four checklists for practitioners: • The advocacy checklist: for advocates pushing for law and policy reform and better practice related to the immigration detention of stateless persons in their country. • The decision to detain checklist: for state authorities making the decision to detain, and for those challenging the legality of such decisions. • The ongoing detention checklist: for practitioners (detaining authorities, lawyers, NGOs etc.) concerned with ongoing detention. • The post-release checklist: for practitioners (social welfare officers, lawyers, NGOs etc.) who engage with and provide services to released detainees. 1.2 KEY TERMS DEFINED Stateless person A stateless person is defined in the 1954 Convention Relating to the Status of Stateless Persons as someone “who is not considered as a national by any state under the operation of its law”.6 This definition is part of customary international law and has been authoritatively interpreted by UNHCR as requiring “a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law.”7 Thus, it is not always a straightforward process to identify if someone is stateless or not, and there will be people who appear to have a nationality, but actually are stateless, or whose statelessness becomes apparent over a period of time. This is one of the reasons it is so important to also protect persons at risk of statelessness. Person at risk of statelessness These are people who either are not stateless, but who can over a period of time become stateless; or whose statelessness will become evident over a period of time. Immigration detention for the purpose of removal is one of the contexts which can bring hidden statelessness to light over the course of time, or indeed, motivate a state to not recognise as its national, a person who it may have recognised as a national in another context. Thus, immigration detention can increase the risk of statelessness for some, and it can unearth the statelessness of others. Thus, in the immigration detention context in particular, the protection needs of those at risk of statelessness – which stem from their un-returnability – significantly overlap with the protection needs of the stateless. Other terms of art used to describe similar or overlapping groups include the de facto stateless,8 unreturnable persons and those with ineffective nationality. By using the term ‘persons at risk of statelessness’ this toolkit encourages the practitioner to be mindful that the act of detention can have an impact on the status of the individual – including their (non)recognition as a national by a particular state – and can equally shed light on a previously unknown status. Thus, it is crucially important to ensure that the individual is protected at all times, and that in the event of un-returnability, the question of statelessness is revisited. In other words, this term does not box the individual in a category that is permanently separate to statelessness, but rather shows that the individual is in a place of vulnerability that can escalate into statelessness, or with time and further evidence be confirmed as statelessness. Therefore, the obligation to identify statelessness is not a one-off, but may recur.