A REGIONAL TOOLKIT FOR PRACTITIONERS 1 15 to act with due diligence and recognise a link between his statelessness and impossibility to remove, resulted in a violation of the Convention. Similarly, in Okonkwo v Austria it was alleged that the Austrian authorities were aware of Mr. Okonkwo’s statelessness. Therefore, his detention “could not possibly have served the purpose of securing his deportation.”23 European Union Article 15 of the EU Returns Directive permits detention only when an individual is subject to being removed from the state. The Directive further requires that “Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.”24 In light of these provisions it is reasonable to assert that states have a due diligence obligation to identify statelessness or risk of statelessness before deciding to detain and having detained, if removal is not possible within a reasonable period. Failure to do so would result in more people unnecessarily being arbitrarily detained for lengthy periods of time. The ECJ has not yet delved into the issue of determination of a person’s statelessness in the context of detention, and therefore, there is no relevant case law on the matter. However, it could be an important question for the Court to deal with in the future in light of the Returns Directive. Other resources The Equal Rights Trust Guidelines to Protect Stateless Persons from Arbitrary Detention (ERT Guidelines) contain a series of Guidelines on the identification of stateless persons (see Guideline 13 and 19 – 22). Guideline 13 reiterates the state obligation to “identify stateless persons within their territory or subject to their jurisdiction as a first step towards ensuring the protection of their human rights.” Guideline 19 states that immigration systems should have “efficient, effective, objective, fair and accessible procedures in place for the identification of stateless persons” and should comply with international standards. Guideline 20 states that determination procedures should take into account various factors which “can undermine the effectiveness of a person’s nationality.” This Guideline demonstrates that in the context of immigration detention, identifying those at risk of statelessness is equally important – and for the same reasons – as identifying stateless persons. Guideline 21 states that all statelessness determination procedures should be non-discriminatory, and should be applied without discrimination.25 A recent paper published by the European Network on Statelessness, titled ‘Strategic Litigation: An Obligation for Statelessness Determination under the European Convention on Human Rights?’ states that Article 5 ECHR obligates states to at the very outset “identify if the person can be removed or not, in order to conduct the proceedings with due diligence.”26 The paper makes a connection to the freedom from torture, stating that “ignoring unidentified applicants and failing to determine their (possible) statelessness could, due to the distress and fear it might cause, therefore be considered a breach of Article 3 ECHR.”27 The ENS Good Practice Guide on Statelessness Determination and the Protection Status of Stateless Persons provides an overview of existing statelessness determination procedures, and is a useful resource for states considering introducing such mechanism or aiming to improve their existing procedures, as well as for those advocating for their states to do so.28 2.2 DECISION TO DETAIN AND ARBITRARY DETENTION The decision to detain (or not) is perhaps the most crucial element of the detention process. States have an obligation to respect the security and liberty of the person, which means that no one should be arbitrarily detained. While there are situations in which lawful detention can over a period of time transform into arbitrary detention (where for example, at the outset, there was a reasonable prospect of removal which did not materialise during the course of the detention), in many cases, arbitrariness can be traced back to the decision to detain. Thus, if more was invested in ensuring the right decision was taken initially, there would be fewer arbitrary detentions. Unfortunately, in reality, the converse appears to be happening, with decisions to detain being made as a matter of routine process, without the strict scrutiny required when restricting liberty of the person. All of these elements need to be addressed when making a decision to detain. In section 2.1 above, the importance of identifying statelessness or the risk of statelessness, in part, to establish if a legitimate objective is being pursued and is achievable was addressed. The question of whether an individual is stateless or not would also be relevant to another component of the arbitrariness test – that detention be non-discriminatory. This is because the failure to accommodate the stateless and cater to their protection needs is discriminatory treatment. The components of necessity, proportionality and reasonableness are equally important considerations, as even where there is a legitimate objective, if this can be pursued without depriving liberty (for example, through the implementation of alternatives to detention) or if the extent of the deprivation of liberty for the pursuit of that objective is a disproportionate response, it would render the detention arbitrary. Finally, all detention must be provided for by the law and in accordance with the law (both national and international). Based on the above, it is clear that mandatory detention or detention for purposes other than those allowed under the law (for example, for punitive purposes) would be arbitrary.