16 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION I saw my case-owner only once. The authorities would send me monthly progress reports but they always said the same thing; it looked like they were copied and pasted. I did not believe my case-owner was progressing my case. ANTHONY, ORIGINALLY FROM ZIMBABWE, INTERVIEWED IN THE UK IDENTIFICATION OF STATELESSNESS The obligation on states to identify stateless persons within their territory or jurisdiction is implicit in international human rights law. Where states are party to the 1954 Convention, this obligation is well established. But, even where states are not party to the Convention (or individuals are excluded from its protection), the identification of stateless persons may be necessary to protect their human rights. For example, in the context of removal and detention, being stateless is likely to present significant barriers to removal, which could render their detention arbitrary. So, without a procedure in place to identify and determine statelessness, authorities risk making unlawful decisions to detain. While a handful of European countries do have statelessness determination procedures in place, none routinely consider statelessness as part of the decision-making process to remove or detain. Furthermore, very few countries make their statelessness determination procedures easily accessible to people being held in immigration detention. As such there is a significant protection gap in practice for stateless persons even where countries do have a procedure. • In Ukraine, statelessness is not considered in decisions to detain, and many stateless persons are incorrectly categorised as citizens of other countries. • In the UK, statelessness is not considered in the decision to detain. The burden of proof in the statelessness determination procedure is on the applicant, which presents barriers for detainees as no provisions are in place to facilitate access to the procedure or assist with case preparation, and they do not automatically have access to an interview. • In Poland, authorities do not consider statelessness in decisions to detain and courts have even extended detention on the basis that authorities failed to establish a detainee’s identity or the country of destination refused to cooperate with removal. The identification and determination of statelessness is essential to preventing arbitrary immigration detention. To ensure that people have access to justice, and improve accountability and the quality of decision making, there should be investment in establishing and implementing robust procedures and training decision makers. States should put in place statelessness determination procedures and ensure that: • Statelessness determination procedures are developed in line with established guidance including the UNHCR Handbook on Protection of Stateless Persons. • Anyone on the territory or subject to its jurisdiction has access to a statelessness determination procedure at any time, including those who are undocumented, without lawful residence, or in detention. • Decisions to detain or remove an individual consider statelessness: if someone claims to be stateless or is suspected of being stateless (or is unable to establish their nationality), they should be provided with information and legal aid, and referred to a statelessness determination procedure that can formally recognise their status and grant them the appropriate protection. • People going through a statelessness determination procedure have a right of appeal and review, access to legal aid and advice, and information about their rights in a language they understand. ADDRESSING VULNERABILITY AND PROTECTING AGAINST DISCRIMINATION The obligation to not discriminate is a fundamental principle of international human rights law. Stateless persons and those at risk of statelessness must be protected from discrimination, including in the exercise of immigration powers; and any vulnerabilities arising either from their statelessness or other characteristics, must be addressed. For detention not to be arbitrary, it must also not be discriminatory. This requires states to carry out an assessment of circumstances and vulnerabilities. A one-size-fits-all approach will fail to guarantee equal treatment before the law. In addition to being disproportionate and unnecessary, the routine detention of all those subject to removal procedures risks indirectly discriminating against people who cannot be removed within a reasonable time period, including the stateless. The obligation to identify and act on statelessness and other vulnerabilities, and to protect individual rights, is therefore directly linked to the obligation to not discriminate.