AN AGENDA FOR CHANGE 1 13 The shift towards community based alternatives to detention must be harnessed by national governments and more widely implemented, with their appropriateness for stateless people considered and acted upon. Rights relating not only to nationality status, but also other characteristics, such as ethnicity, gender or gender identity, sexual orientation, disability, or age, must be proactively protected before the law. Stateless people must be given the tools to rebuild their lives and foster integration in Europe’s communities, including through naturalisation. Finally, to effectively implement reform, state authorities must improve how they record, monitor and report on statelessness and detention. Ultimately, fairer systems, which have human rights principles at their core, will be more efficient, more effective, and more humane. In Part II of this report, we take a closer look at what needs to change to address these key challenges. ENDING ARBITRARY DETENTION OF STATELESS PERSONS The right to liberty of person is a fundamental right of international law that applies to all people, at all times – including stateless persons. This right to personal liberty enshrines a number of important safeguards that states must ensure whenever they are considering the use of detention, which are that detention is, inter alia (i) provided for by national law; (ii) carried out in pursuit of a legitimate purpose; (iii) non-arbitrary; (vi) non-discriminatory; and (v) carried out in accordance with procedural and substantive due process safeguards. The prohibition of arbitrary detention, in particular, is one of the few non-derogable norms of customary international law ( jus cogens) and therefore a principle of universal application and authority in international human rights law. The international and regional legal frameworks are discussed in detail in the Toolkit for Practitioners, but one example of a key legal source under each of the three relevant frameworks is set out below as an illustration. In several countries researched, policy and practice fell short of these standards, exposing stateless people to the risk of arbitrary detention. Where someone is stateless or at risk of statelessness, their removal is likely to be subject to extensive delays and is often impossible, and may render detention unlawful from the outset. Stateless persons detained for removal purposes are therefore vulnerable to prolonged, repeated and even indefinite detention. There must be a legitimate purpose to detain, which must also be achievable within a reasonable period, and pursued with due diligence. So, in removal proceedings, if there is no evident country to remove the person to, or if no appropriate safe country will accept a stateless person, their detention will be arbitrary. Even if an initial decision to detain was justifiable, it can become arbitrary over time. Ongoing review is therefore essential. Where a legitimate purpose is being pursued, detention must never be arbitrary, which means it must be an exceptional measure of last resort. For example, the EU Returns Directive provides for two circumstances where detention for removal may be justified: where there is a risk of absconding, or where the person avoids or hampers the process. Notably, even in these situations, less coercive measures should be applied if available. For detention to be necessary therefore, alternatives must have been considered and the availability of a range of appropriate alternatives demonstrated alongside why they would not be suitable. Where a legitimate purpose is being pursued and detention is considered necessary, it must also be proportionate and reasonable. The longer a person is in detention, the more difficult it is to maintain that detention is a proportionate response. It is extremely difficult to justify the detention of certain groups of people, such as minors, pregnant women, survivors of torture, trafficking, or abuse, or those with mental health issues, under the proportionality and reasonableness test. Importantly, the experience of detention itself can cause vulnerability or exacerbate existing vulnerabilities, highlighting again the importance of ongoing vulnerability assessment. The United Nations ICCPR Article 9.1 Council of Europe ECHR Article 5.1 (f) European Union Returns Directive Article 15.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process.