22 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION KEY TERMS A stateless person is defined in the 1954 Convention as someone “who is not considered as a national by any state under the operation of its law”. 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.” 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. A person at risk of statelessness is someone who either is not stateless, but may become so; or whose statelessness may become evident over time. Immigration detention for the purpose of removal is one of the contexts in which hidden statelessness can come to light. Indeed, states may be motivated to not recognise as their nationals, individuals they may have recognised as nationals in the past or in another context. In this way, immigration detention for the purpose of removal can increase the risk of statelessness for some and unearth the statelessness of others. In the immigration detention context, the protection needs of those at risk of statelessness significantly overlap with the protection needs of the stateless. Detention is defined by UNHCR as “the deprivation of liberty or confinement in a closed place”, which the individual “is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities.” KEY RESOURCES All the resources listed below can be found at: www.statelessness.eu/detention-resources Immigration detention and alternatives to detention: • Association for the Prevention of Torture, International Detention Coalition and UNHCR, Monitoring Immigration Detention: A Practical Manual (2014) • Equal Rights Trust, Guidelines to protect stateless persons from arbitrary detention (2012) • European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: A Regional Toolkit for Practitioners (2016) • European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: Personal Stories (2015) • European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention in Ukraine; Bulgaria; the United Kingdom; Malta; the Netherlands; and Poland (2016) • Global Detention Project (Mariette Grange & Izabella Majcher), When Is Immigration Detention Lawful? The Monitoring Practices of UN Human Rights Mechanisms (2017) • International Detention Coalition, There Are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention (2015) • International Detention Coalition, Captured Childhood: Introducing a new model to ensure the rights and liberty of refugee, asylum seeker and Irregular migrant children affected by Immigration detention (2012) • UNHCR, Beyond Detention. A Global Strategy to support governments to end the detention of asylum-seekers and refugees, 2014-2019 (2014) • UNHCR, Options Paper 1: Options for governments on care arrangements and alternatives to detention for children and families (2015) • UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) • UNHCR and International Detention Coalition, Vulnerability Screening Tool – Identifying and addressing vulnerability: a tool for asylum and migration systems (2016) Statelessness determination and the protection of stateless persons: • UNHCR, Good Practice Guide on Statelessness Determination and the Protection of Stateless Persons (2013) • UNHCR, Handbook on Protection of Stateless Persons (2014) • UNHCR, Nationality and Statelessness: Handbook for Parliamentarians N° 22 (2014) European legal framework including on immigration detention: • Council of Europe, Human rights files, No. 9: Asylum and the European Convention on Human Rights (2011) • European Asylum Support Office, An Introduction to the Common European Asylum System for Courts and Tribunals: A Judicial Analysis (2016) • EU Fundamental Rights Agency, Handbook on European law relating to asylum, borders and immigration (2013)