Legal briefing: Statelessness and the right to respect for private and family life October 2024 ensure that, in accordance with Article 53 ECHR, States fully comply with their obligations under international human rights law, in particular the 1961 Convention. 2.5. Deprivation of liberty and removal procedures Both the CJEU and the ECtHR have established limits on the detention of stateless people especially when there is no reasonable prospect of removal, but these have been mostly assessed through either Article 5 ECHR (right to liberty and security) or EU law relating to return and removal procedures.182 However, the ECtHR has occasionally found that situations of deprivation of liberty may also come within the scope of Article 8 in relation to an individual’s physical and moral integrity.183 Article 8 ECHR is intended to protect persons from any arbitrary interference by public authorities with their right to respect for private and family life, home and correspondence. In the context of stateless persons, this may include routine arbitrary arrests, the threat of detention and expulsion, criminal prosecution and punishment for mere presence in the territory as an undocumented person, and recurrent identity checks. Stateless persons face a heightened risk of arbitrary detention particularly where procedural safeguards to identify and determine statelessness and related barriers to removal are lacking, as they typically face obstacles in accessing documentation, providing evidence and demonstrating ties to a country.184 Moreover, arbitrary and disproportionately lengthy detention can ensue when the particular vulnerabilities of stateless people are not addressed.185 Detention of stateless persons as an interference with private and family life was addressed by the ECtHR in the case of Al-Nashif v. Bulgaria.186 The case concerned a stateless person of Palestinian origin born in Kuwait, who resided in Bulgaria with his two children who were both born in Bulgaria and hold Bulgarian nationality. His residence permit was withdrawn on the basis that he had engaged in alleged religious extremism. He was later detained and deported to Syria. The Court found violations of Articles 8 and 13 (right to an effective remedy) ECHR, as well as Article 5(4) (right to liberty and security). In relation to Article 8 ECHR, the ECtHR noted that the applicant and his first wife arrived in Bulgaria as a married couple before having children and continued living in the country until the day of his arrest.187 While the applicant had a separate Islamic marriage to his second wife, there had been no interruption to the family link between the applicant and his first wife. The applicant had also argued that the family had not developed strong links in Syria: they had never lived there, nor had they developed any 182 The cases that engage Article 5 ECHR are not addressed in this briefing. For further information, see ENS and The AIRE Centre, Litigation Toolkit on Statelessness, Volume II: Jurisprudence, June 2024, pp. 14-16. See also (recast) EU Council Directive 2024/1346 of 14 May 2024 (‘Reception Conditions Directive’) for EU law relating to return and removal procedures. 183 ECtHR, El-Masri v. the Former Yugoslav Republic of Macedonia (application no. 39630/09), 13 December 2012, paragraph 248. 184 See generally, ENS, Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change (2017). 185 ENS, Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change (2017), pp. 9-11. 186 ECtHR, Al-Nashif v. Bulgaria (application no. 50963/99), 20 June 2002. See also ECtHR, Amie and Others v. Bulgaria (application no. 58149/08), 12 February 2013, paragraphs 88-102. 187 ECtHR, Al-Nashif v. Bulgaria (application no. 50963/99), 20 June 2002, paragraph 113. 31