20 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION to cruel, inhuman or degrading treatment or punishment or to a country that is refusing to admit the individual in question could amount to inhuman or degrading treatment. According to UNHCR’s 2014 Handbook on Protection of Stateless Persons, states may at times need clarification from the competent authority of another state, regarding an individual’s nationality or lack thereof. These inquiries can, however, result in no response or an outright refusal to respond from the authority in question. The Handbook clearly requires that any conclusions should only be drawn after a reasonable amount of time – not immediately– and it should be kept in mind that if “a competent authority has a general policy of never replying to such requests, no inference can be drawn from this failure to respond based on the nonresponse alone.” On the other hand, if a state is normally responsive but fails to respond, said lack of response “will generally provide strong confirmation that the individual is not a national”.71 This is admittedly a grey area in the law, as to how much time or how many refusals to cooperate count towards an assumption that the individual is stateless.72 It is also important to note that: Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.73 Regarding the burden of proof, the UNHCR Handbook states that while normally in other administrative or judicial proceedings the applicant bears the burden of proof, in the case of statelessness determination procedures, the burden of proof should be shared – both applicant and the examining authority should work in cooperation to establish the facts. The applicant “has a duty to be truthful, provide as full an account of his or her position as possible and to submit all evidence reasonably available. Similarly, the determination authority is required to obtain and present all relevant evidence reasonably available to it, enabling an objective determination of the applicant’s status.”74 Guideline 9 of UNHCR’s Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers requires detaining authorities to take the necessary steps to resolve cases within a reasonable amount of time, including taking “practical steps to identify and confirm the individual’s nationality status in order to determine which State they may be returned to, or through negotiations with the country of habitual residence to arrange for their re-admission.”75 UNHCR and Asylum Aid’s 2011 Mapping Study of the UK found that often, “UK Border Agency officials would attribute a nationality without sufficient or appropriate evidence” and would not appropriately “adjust the nationality categorisation of an individual” despite evidence that the individual had no nationality.76 This even was the case in situations where a state’s embassy or consulate expressly refused to acknowledge the individual in question as a national. Wrong categorisation can lead to prolonged periods of detention, and for this reason, it is important for states to correctly categorise an individual as a national of a state or as a stateless person. Council of Europe As explained above, the ECHR only allows for immigration detention in the context of prevention of unauthorised entry or removal. Thus, the decision to remove is of significant importance. One question in this regard, is if removal is being pursued with due diligence. In Abdi v United Kingdom, it was claimed that Mr. Abdi was not detained as “a person against whom action was being taken with a view to deportation”77 since at the time of his detention, it was not possible to remove a person to southern Somalia. Another question is whether removal is possible in compliance with other human rights standards. In Auad v Bulgaria, the ECtHR was concerned with whether there were effective guarantees that would protect the individual “against arbitrary refoulement, be it direct or indirect, to the country from which he has fled.” The Court also mentioned that “removal to an intermediary country does not affect the responsibility of the expelling State to ensure that the applicant is not exposed to treatment contrary to Article 3 as a result of the decision to expel.”78 This requirement is strongly supported by the Court’s case law.79 In Amie and Others v Bulgaria, the ECtHR stated that the expulsion of refugees – particularly stateless refugees – can be difficult and often impossible, since “there is no readily available country to which they may be removed.” Due to this challenge, authorities should, before initiating removal proceedings, “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.”80 In Kim v Russia, the applicant argued that expulsion proceedings had not been carried out diligently, as: No effort had been made to contact the Uzbek authorities in the first four months and eleven days of his detention… a first reply was received more than one year and two months after the despatch of the first letter… there had been no justification for the applicant’s detention after 5 February 2013, when the Russian authorities had become aware that he was not an Uzbek national and there had been no complex extradition proceedings and the only issue to be determined had been whether at least one State was willing and able to receive him.81 The Court found that in addition to the detention ceasing to be legitimate once there is no prospect for removal, detention also ceases to be legitimate when removal proceedings are not carried out with due diligence. The four month delay was found to be in breach of the due diligence requirement, making the detention contrary to Article 5(1)(f).82 In Harabi v Netherlands, the applicant claimed that Dutch authorities “failed to recognise the consequences of the fact that he is a stateless person” and claimed his removal from the Netherlands to countries where he would not be admitted would amount to inhuman treatment in violation of Article 3 of the Convention. The European Commission considered that while under Dutch policy, Mr. Harabi was not entitled to a residence permit, the “repeated expulsion of an individual, whose identity was impossible to establish, to a country where his admission is not guaranteed, may raise an issue under Article 3”.83