A REGIONAL TOOLKIT FOR PRACTITIONERS 1 27 ERT Guideline 50 further recommends that there be “a presumption of release of children born in detention. Such children should have their births registered and their right to a nationality respected and protected in accordance with the provisions of international law.” Guideline 46 states that “It is highly desirable that individual vulnerability assessments of all stateless detainees are carried out periodically by qualified persons, to determine whether detention has had a negative impact on their health and wellbeing.” 130 2.7 LENGTH OF DETENTION As stated above, stateless persons are vulnerable to lengthy, even indefinite detention, which has a significant psychological and emotional impact on the individual. In fact, indefinite and/or unreasonable lengthy detention may in some cases be tantamount to cruel, inhuman or degrading treatment. Thus, when establishing whether removal is feasible, it is important to assess if it is feasible within a reasonable period of time. Detention for unreasonable periods of time would be arbitrary. However, there is no international standard that specifies what the maximum time limit for detention should be. The closest to such a standard, is the Returns Directive which stipulates a time limit of 6 months. However, this time limit can be extended in exceptional circumstances to 18 months. While many states have a legal time limit for detention, some adopt a more flexible approach. It is desirable that states clearly specify a reasonable maximum time limit. Under no circumstances should indefinite detention be tolerated. United Nations In A v Australia, a case challenging the legality of over four years of detention, the HRC found that detention “should not continue beyond the period for which the State can provide appropriate justification” and if it does, said detention is arbitrary and in violation of Article 9 ICCPR, even if entry into the state’s territory was illegal.131 This position was upheld in the latter case of C v Australia.132 In FKGA v Australia, the HRC established that “individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion”133 The Working Group on Arbitrary Detention, in its 2010 report, stated that the procedural guarantees all detainees should have include “the fact that a maximum period of detention must be established by law and that upon expiry of this period the detainee must be automatically released.”134 The report also mentioned that “the inability of the authorities to carry out the expulsion of an individual can never justify indefinite detention.”135 OHCHR, in its publication titled Administrative Detention of Migrants, mentions that detention “should last only for the time necessary for the deportation/expulsion to become effective”136 and should never become indefinite. The OHCHR expresses concern that a person’s statelessness can lead to indefinite detention,137 since states are unable to find a country that will receive them and many states refuse to release detainees who have been detained with a view to being removed. UNHCR’s Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, mentions that “to guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite, including particularly for stateless asylum-seekers.”138 Council of Europe In Auad v Bulgaria, The ECtHR found that “the length of the detention should not exceed that reasonably required for the purpose pursued.”139 The Court also mentioned that although the ECHR does not contain specific maximum time limits, the question of “whether the length of deportation proceedings could affect the lawfulness of detention under this provision thus depends solely on the particular circumstances of each case,” and can be justified only as long as “deportation or extradition proceedings are in progress” and as long as the aforementioned removal proceedings are carried out with due diligence.140 In Mikolenko v Estonia, the ECtHR stated that the extension of Mr. Mikolenko’s detention “had actually become a form of punishment and a means of breaking his will.”141 The Court reiterated that detention is justified under Article 5(1)(f) ECHR as long as “deportation proceedings are being conducted”142 and these proceedings must be carried out with due diligence. However, when expulsion becomes impossible, the continuation of detention “cannot be said to have been effected with a view to his deportation as this was no longer feasible.”143 In Kim v Russia, the ECtHR found that the grounds for Mr. Kim’s detention, with a view to his expulsion from Russia, “did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion” and due to the failure of the authorities to “conduct the proceedings with due diligence.”144 European Union Article 15(5) EU Returns Directive states that detention is to be maintained for as long as the conditions found in Article 15(1) of the Directive are still fulfilled and as long as detention is necessary to ensure removal. Article 15(5) of the Directive also prescribes that “Each Member State shall set a limited period of detention, which may not exceed six months.” However, 15(6) allows for this maximum time limit to be extended by a further 12 months in the specific circumstances of the detainee refusing to cooperate with removal proceedings or delays in obtaining documentation from third countries.