International obligations International human rights law provides that everyone, including stateless persons, should never be detained in an arbitrary manner. Detention will be arbitrary unless it is: 1) 2) 3) 4) 5) 6) carried out in pursuit of a legitimate objective; lawful; non-discriminatory; necessary; proportionate and reasonable; and, carried out in accordance with procedural safeguards in international law.336 Article 5 ECHR provides an additional source of legal protection for stateless persons in the UK against arbitrary administrative detention, and can be relied on in domestic law as a result of the Human Rights Act.337 At present the jurisprudence on the application of Article 5 ECHR to stateless persons is limited.338 However, there is notable judicial comment that implies that the common law provides as much protection in respect of immigration detention as Article 5.339 The case law of the European Court of Human Rights indicates that the requirements to avoid arbitrariness for the purposes of Article 5 ECHR340 are less demanding than those required by Article 9 ICCPR.341 106 336 See Guidelines on the Detention of Stateless Persons: Consultation Draft Equal Rights Review, Volume 7, (2011) http://www.equalrightstrust.org/ertdocumentbank/ERR7_guidelines%20draft. pdf and UNHCR, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, April 2011, PPLA/2011/01.Rev.1, available at: http://www.unhcr.org/refworld/docid/4dc935fd2.html. 337 For an example of its application to the situation of a stateless person in detention, see Al-Nashif v. Bulgaria, 50963/99, Council of Europe: European Court of Human Rights, 20 June 2002, available at: http://www.unhcr.org/refworld/docid/468cbc9d0.html. 338 The Court appeared to have had an opportunity to provide further guidance on the issue in a case that had been communicated to the parties but a friendly settlement was reached. See Lakatosh and others v. Russia Application No. 32002/10. 339 “The common law is just as respectful of the liberty of the person, and just as distrustful of arbitrary and secret decision-making by officials acting on behalf of Government, as the Convention”: see Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 (Appellant) v. Secretary of State for the Home Department (Respondent); Kadian Mighty (previously referred to as KM) (Jamaica) (Appellant) v. Secretary of State for the Home Department (Respondent), [2011] UKSC 12, United Kingdom: Supreme Court, 23 March 2011, available at: http://www.unhcr.org/refworld/ docid/4e2d849c2.html, para. 206, per Lady Hale. 340 See, for example, Saadi v. United Kingdom, 13229/03, Council of Europe: European Court of Human Rights, 29 January 2008, available at: http://www.unhcr.org/refworld/docid/47a074302.html, and Lokpo et Touré v. Hungary, Application no. 10816/10, Council of Europe: European Court of Human Rights, 20 September 2011, available at: http://www.unhcr.org/refworld/docid/4e8ac6652. html, paras. 16-18. 341 It should be noted that the Human Rights Committee has identified higher thresholds of what must be satisfied for arbitrariness to be avoided under Article 9 ICCPR than the Strasbourg Court has applied to Article 5(1)(f) of the ECHR. The ICCPR “imports concepts of reasonableness, necessity, proportionality and non-discrimination” into the consideration of the compatibility of detention. However, as a result of the lack of incorporation of Article 9 ICCPR into domestic law, these provisions cannot be directly relied upon in the domestic courts. That said, the UK is obliged as a matter of international law to perform its obligations and it may not invoke the provisions of its internal law as justification for any failure to perform its obligations under Article 9. See UNHCR, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, op. cit., p.20. Mapping statelessness