30 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION conditions of a detention facility must “meet basic standards that allow detainees to live in safety and dignity for the duration of their confinement.” Said standards cover a wide range of areas, including the number of residents for the space provided, quality of the facilities, the quality of shelter based on the climate, access to outdoor recreational spaces, food which meets the dietary requirements, cultural and religious needs of detainees, proper hygiene including “bathing facilities, toiletries, clean clothes and bed linen” among others. Furthermore, detainees should never be held in facilities meant for convicts or that are currently being used to hold convicts and detainees.171 The International Commission of Jurists, in its Practitioner’s Guide, states that even when detention can be justified, international human rights law “imposes further constraints on the place and regime of detention, the conditions of detention, and the social and medical services available to detainees. In addition, it imposes obligations to protect detainees from violence in detention.”172 The Commission also mentions that according to international guidelines, “detained migrants should be held in specifically designed centres in conditions tailored to their legal status and catering for their particular needs”173 and their detention in “unsuitable locations, including police stations or prisons, may lead or contribute to violations of freedom from torture or cruel, inhuman or degrading treatment.” ERT Detention Guideline 43 provides that the conditions of detention must be prescribed by law and must comply with international human rights law and standards, placing emphasis on: humane detention conditions with respect for the inherent dignity of the person – no detainee can be subjected to torture, cruel, inhuman or degrading treatment or punishment; stateless persons in detention must be protected from discrimination and harassment and should not be held in worse conditions than that of national detainees; stateless detainees should be “subject to treatment that is appropriate to the administrative purpose of their detention” and should not be held together with convicted persons; detention facilities should be built in “compliance with the principle that there is no punitive element to immigration detention”; women and men should be held separately unless they are family members; accommodation should be provided for the comfort and wellbeing of disabled persons; detainees should be given access to visits from friends, family, legal counsel, and others.174 2.9 CONDITIONS OF RELEASE AND PROTECTION FROM RE-DETENTION At any point during the detention that it becomes evident that detention is no longer non-arbitrary – perhaps because the legitimate objective is not being pursued with due diligence, or because the legitimate objective cannot be achieved within a reasonable time period, or detention is no longer necessary to pursue the legitimate objective, or the conditions of detention amount to inflicting cruel, inhuman or degrading treatment on the detainee etc., the detainee should be released. Such release may result from proceedings initiated by the detainee, or by the periodical review of detention by the state. Once released, it is essential that stateless persons (in particular) are given the legal status and the means to provide for themselves, or at the very least are provided for adequately so they can live dignified lives. The failure to do so may also amount to cruel, inhuman or degrading treatment. Furthermore, the non-provision of legal status and related work (and other) rights increases the likelihood of offending in order to survive, thus increasing the likelihood of re-detention. Re-detaining stateless persons who cannot be removed is emblematic of a failed system that punishes the individual for its failings. Unless material circumstances have significantly changed, such re-detention is likely at the very outset to be arbitrary, and therefore, in most circumstances, should be avoided. In order to break stateless persons out of the cycle of re-detention, they must be afforded a legal status which allows them to live their lives with dignity and within the sphere of legality. United Nations Article 9(4) ICCPR provides that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a Court, in order that that Court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” In Celepli v Sweden, the HRC stated that since the expulsion order was not enforced, and the applicant was given permission to stay in Sweden, subject to restrictions, this meant that he was lawfully in the territory of Sweden.175 Article 12 ICESCR protects the right to “the highest attainable standard of physical and mental health.” Article 9 addresses the right to social security, Article 11 ICESCR protects the right to an adequate standard of living, including adequate food, clothing and housing, and Article 13 ICESCR the right to education for all. Upon release, states should ensure that formerly detained persons have access to these rights. Article 27 of the 1954 Statelessness Convention requires state parties to “issue identity papers to any stateless person in their territory who does not possess a valid travel document.” This provision applies to all stateless persons, which includes those not staying legally in the state’s territory. Therefore, state parties to the 1954 Convention have an obligation to provide stay rights to stateless persons who have been released from detention.