Addressing vulnerability and protecting against discrimination
The obligation to not discriminate is a fundamental principle of international human rights law. Stateless persons and those at risk of statelessness must be protected from discrimination, including in the exercise of immigration powers; and any vulnerabilities arising either from their statelessness or other characteristics, must be addressed. For detention not to be arbitrary, it must also not be discriminatory. This requires states to carry out an assessment of circumstances and vulnerabilities. A one-size-fits-all approach will fail to guarantee equal treatment before the law. In addition to being disproportionate and unnecessary, the routine detention of all those subject to removal procedures risks indirectly discriminating against people who cannot be removed within a reasonable time period, including the stateless. The obligation to identify and act on statelessness and other vulnerabilities, and to protect individual rights, is therefore directly linked to the obligation to not discriminate.
States are clearly falling short of their duties to not discriminate, and to identify and protect those with vulnerabilities, including those who may also be stateless or at risk of statelessness, or who may be in vulnerable circumstances due to aspects of their identity, such as gender or gender identity, sexual orientation, age or disability. States should also acknowledge that the experience of detention in itself can cause vulnerability. Immigration authorities should take responsibility for ensuring ongoing vulnerability assessments are carried out and people’s health and wellbeing protected.
- Immigration authorities must put in place robust mechanisms to identify and protect individuals’ rights, respond to vulnerabilities (including those that may arise from the experience of detention), and exercise their duty to not discriminate.
- Immigration authorities should not routinely detain or otherwise discriminate against those who have previously served criminal sentences.
- States should build specific protections for women and children into their immigration systems.
- The immigration detention of children is never in their best interests: alternatives to detention should be provided for families and alternative care arrangements made for unaccompanied children.
Tahir was tortured in his country of origin and deprived of his Afghan nationality. He was granted refugee status in Bulgaria where he is settled with a family and has lived for more than 15 years. One day, he was issued with an expulsion order from Bulgaria on national security grounds because of alleged involvement in human smuggling and detained. Tahir suffers from chronic bronchial asthma, high blood pressure, heart problems, and sleep epilepsy. A medical report appointed by the Court concluded that “the sanitary conditions [in detention] are incompatible with his health… there is a real risk of [his health] worsening… and in the near future this might lead to respiratory and cardiac failure”. Despite this, Tahir remains in detention.
How on earth did they imagine a person crossing the border to get a passport without having one?Ivan is in his late forties and originally from the former USSR. He was born in what is now Uzbekistan. Fleeing the country in 1990, he drifted through several countries before arriving in the Netherlands. Ivan is not eligible for either Russian or Uzbek nationality. He is HIV positive, has chronic Hepatitis C and suffers from post-traumatic stress disorder. He has been in and out of immigration detention, losing nearly four years of his life to imprisonment, and lives in constant fear of being re-detained.