AN AGENDA FOR CHANGE 1 11 As these stories demonstrate, many people interviewed for the research had complex needs and additional vulnerabilities to those arising from their statelessness. What they all had in common was a right to protection under international law, but they had fallen through cracks in the system. In many countries, through poor design or misapplication, the systems themselves render the stateless even more vulnerable to long-term detention. For example: • In Poland, people without documentation who cannot confirm their identity can be granted residence. However, the law actually requires the undocumented to provide documentation, in order to benefit from this provision. The authorities can waive this requirement, but they rarely do. If refused, people are subject to detention and return proceedings even if they can’t be removed. • In Bulgaria, the only alternative to immigration detention is weekly reporting to the police, but this can only be implemented on production of a registered permanent address or a ‘guarantor’ to provide accommodation, which effectively excludes most of those the law is designed to protect. • In the Netherlands, stateless people can apply for a oneyear residence permit if they cannot be removed, in what is known as the ‘no fault procedure’. However, the burden of proof is very high, decisions are discretionary, there is a low approval rate, and no formal recognition of statelessness. In none of the six countries researched did authorities systematically identify statelessness as an integral consideration in decisions to detain or remove. The lack of procedures to identify statelessness – and the failure to make them accessible or effective where they do exist – is therefore contributing to the failure to protect. A further issue is that some states adopt and apply a definition of ‘stateless person’ that falls short of the international legal definition. In some cases, they also require additional conditions to be fulfilled for stateless people to receive protection. This can result in stateless people not being identified and being denied protection even when they have gone through a statelessness determination procedure. For example: • In Ukraine, the legal definition of a stateless person is someone not considered a national by any country ‘in accordance with its laws’. This is narrower than the 1954 Convention – ‘under the operation of its laws’ – which results in a protection gap for those who should be considered a national in law, but who in practice are not. • In the UK, the statelessness determination procedure contains exclusion criteria that might result in people identified as stateless not being granted leave to remain, including where removal to a third country is deemed possible, or on other grounds (e.g. previous criminal convictions). In practice this can also result in their statelessness not being formally identified. This leads to a protection gap where human rights are concerned, for example, in the case of protection from arbitrary detention. • In Bulgaria, under the new statelessness determination procedure, irregular entrants, unlawful residents, and those who have less than five years’ legal residence, may be excluded from stateless status. 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. In many countries, stateless people are increasingly being detained for lengthy periods, simply because there is no country – or no safe country – to return them to. Because of the significant barriers to removal in such cases, their detention is likely to be arbitrary. The result of systemic failures such as these is stateless people living without legal status, unable to work and excluded from support systems, on the margins of Europe’s communities. Men, women, and children are facing destitution, isolation, heightened risk of exploitation and abuse, and petty ‘survival’ criminality, which in turn often leads to apprehension and detention. Breaking this vicious and discriminatory cycle of destitution and detention requires urgent law and policy reform. Changes that align policy and practice with international and regional law, leading to better identification, recognition, and protection, will go a long way to reducing human suffering and building more integrated, equal, and prosperous communities.