22 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION United Nations As established in the sections above on identification and decision to detain, ICCPR Article 9 obligates states to not detain persons in an arbitrary manner, a requirement which in turn only allows detention that is necessary and proportionate (among other criteria). Thus, the obligation to always explore alternatives to detention before considering detention, and implement them if deemed appropriate, is an important consequence of obligations under Article 9 ICCPR. In FKGA v Australia, the HRC stated that any decision relating to detention “must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review.”88 The UN General Assembly Resolution on the protection of migrants “Calls upon all States to respect the human rights and the inherent dignity of migrants and to put an end to arbitrary arrest and detention…and to adopt, where applicable, alternative measures to detention”89 The Working Group on Arbitrary Detention mentions in its 2010 report that alternatives to detention can be greatly beneficial and can take various forms, including “reporting at regular intervals to the authorities; release on bail; or stay in open centres or at a designated place...They must however not become alternatives to release.”90 The Working group in its 2014 report mentions that detention of asylum-seekers and migrants should be “a last resort and permissible only for the shortest period of time.”91 According to the UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention “alternatives to detention refers to any legislation, policy or practice that allows asylum-seekers to reside in the community subject to a number of conditions or restrictions on their freedom of movement” and since they can involve restrictions on movement of liberty they are bound by human right standards.92 UNHCR has published two options papers which are highly relevant to alternatives to detention.93 UNHCR defined case management as “a strategy for supporting and managing individuals and their asylum or other migration claims whilst their status is being resolved, with a focus on informed decision-making, timely and fair status resolution and improved coping mechanisms and well-being on the part of individuals.”94 This is essential for ensuring alternatives to detention. The Special Rapporteur on the rights of migrants, in his 2012 report, stated that it is essential to stress that “alternatives to detention should not become alternatives to unconditional release” 95 and those who are eligible for release should be released and not subject to alternatives to detention. In the Special Rapporteur’s view, the states “obligation to always consider alternatives to detention (non-custodial measures) before resorting to detention should be established by law.” 96 Council of Europe As with the ICCPR, under Article 5 ECHR as well, states cannot detain persons arbitrarily, and instead, detention is only permissible when carried out as a last resort, is necessary and proportionate. Implicit to these standards is the obligation to always explore and implement alternatives to detention. Guideline 6(1) of the Council of Europe’s Twenty Guidelines on Forced Return provides that a person can be deprived of liberty – with a view to removal – if such deprivation is in accordance with a procedure prescribed by law and if “after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the host state have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures”97. In Guzzardi v Italy, it was stated that “the difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion…”98 European Union Article 15(1) EU Returns Directive states that detention can be carried out, unless other “less coercive measures” can be applied. In other words, Article 15(1) of the Directive clearly establishes that detention should be the last resort, and all alternatives to detention should be considered before detention is. The EU Reception Conditions Directive requires that “in order to better ensure the physical and psychological integrity of the applicants, detention should be a measure of last resort and may only be applied after all non-custodial alternative measures to detention have been duly examined.” Alternatives to detention must meet the standard of respect for the fundamental rights of the individual in question. Article 8(2) of the Directive requires that when necessary, member states can detain the applicant if alternatives to detention “cannot be applied effectively.” 99 Commenting on this Directive, UNHCR has stated that “reception in open facilities should be the norm; that alternatives to detention should be applied first and detention should only be used as a last resort.”100 Other resources The International Detention Coalition, in its Handbook, defined alternatives to detention as “Any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved or while awaiting deportation or removal from the country.”101 Furthermore, the coalition’s CAP model, which can be found within its Handbook, mentions that alternatives to detention can at times “involve residence at a particular facility but the focus is on mechanisms to monitor the progress of the case including compliance with specific conditions.”102 The Coalition also mentions that “a presumption against detention can be strengthened when alternatives to detention are also established in law”103 and that alternatives to detention provided by law create options for immigration officials when deciding on an individual’s case.