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UK faith leaders urge action to end statelessness

A UK specific #LockedinLimbo campaign statement has been backed by 110 religious and faith leaders including the Moderator of the General Assembly of the Church of Scotland and the Convener/President of the Muslim Council of Scotland, Rowan Williams, the former Archbishop of Canterbury, Bharti Tailor, Vice-President of Religions for Peace UK, the Rev Lorraine Mellor, President of the Methodist Conference and Rabbi Aaron Goldstein, Chair of the Liberal Judaism Rabbinic Conference.

Buddhist, Christian, Hindu, Jewish and Muslim representatives have supported the statement, a full list of which can be found here.

The #LockedinLimbo statement urges the UK Government to do more to welcome those who no longer have a country to call their home.

The move comes during Interfaith Week (12-19 November) which seeks to build on the good relationships and partnerships between people of very diverse faiths and beliefs.

All have a shared commitment to protecting human rights and promoting human dignity.

The statement is calling for action on part of the UK Government to review its policies towards stateless people as many end up in prolonged and pointless detention while the Home Office tries to remove them from the UK.

‘Stateless’ people without legal status cannot leave the UK because no country will accept them. But without status, they don’t have permission to work in the UK and remain vulnerable to destitution, exploitation and detention.

Signatories are calling for alternatives to detention and better support for access to rights and advice and help with integration.

The move is part of the #LockedInLimbo campaign which is led by the European Network on Statelessness and seeks to end the detention of people who end up locked in limbo simply because they have no country that they can return to.

Rt Rev Dr Derek Browning, Moderator of the General Assembly of the Church of Scotland, said:

“I am pleased to support this statement as a sign of my support for global efforts to contribute to ending statelessness.

“Churches have a vital and significant role in offering a message of hope and peace to the world.  It is good to see so many people wanting to engage with the issues and take action.

“The role of the World Council of Churches  in  advocating for the rights of stateless people has been particularly important in helping to focus attention on this issue.”

David Bradwell, Co-ordinator of Scottish Faiths Action for Refugees added:

“When it comes to matters of human dignity and human rights, there should be no acceptance of a situation which leaves people in unfair and unequal situations.

“This is so obviously a question of morality and ethics, and how human societies interact with one another, that it is important that faith and religious leaders, along with all people of good will, speak up and make the case for policy-makers to prioritise the welfare of people who face marginalisation and exclusion.

“The multi-faith collaboration on this statement is a remarkable demonstration that there is a strong shared commitment to the common good.”

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How the Council of Europe is working to help protect stateless refugees and migrants from ending up #LockedinLimbo

TOMÁŠ BOČEK, COUNCIL OF EUROPE SECRETARY GENERAL’S SPECIAL REPRESENTATIVE ON MIGRATION AND REFUGEES

I was pleased to be able to lend my voice to the European Network on Statelessness’ #LockedInLimbo campaign at an event at the Parliamentary Assembly in Strasbourg yesterday. The campaign seeks to build a platform for action to protect stateless people from arbitrary detention in Europe.

Statelessness disrupts the enjoyment of many human rights. Thanks to the terms of reference given to me by the Secretary General of the Council of Europe, I have been able to gain insight into how this happens in the context of migration.

Migration and statelessness are historically inter-connected: persecution and discrimination of stateless people in their countries of habitual residence can be a reason for migrating, while migration can also generate statelessness.

Immigration detention is a recurrent issue in Europe and in the world today. Since my appointment in February 2016, I have visited many such places of detention. This has helped me to establish that detention has become a standard measure of migration management. States regard immigration detention as an efficient tool, using it widely for children, women, persons with disabilities and those who are stateless. Detention is a traumatic experience for anyone. Its application for immigration purposes does not change its perceived punitive nature nor its unsuitability for those in vulnerable circumstances, including stateless people. Recent research by the European Network on Statelessness shows that stateless people are particularly vulnerable to lengthy and repeated detention simply because they lack a nationality or any country to which they can be returned.

Here at the Council of Europe the concern about immigration detention and statelessness has prompted action to find solutions at multiple levels. Firstly, there is a concerted effort to define standards for immigration detention. A draft instrument was circulated for public consultation in June 2017. In addition to standards on material conditions of detention, the codifying instrument may also include rules concerning procedures for screening persons for vulnerability and statelessness; such procedures should help assess the proportionality of the detention measure. Making sure that vulnerability and statelessness are properly identified is an indispensable step to preventing unnecessary and arbitrary detention. So I believe that the consultation exercise, which has emphasised the need for precise procedures to register and identify all personal features of those concerned, statelessness included, can contribute to the further improvement of the draft; something that is needed, as I pointed out when opening the consultation hearing on 22 June 2017.

#LockedinLimbo - Strasbourg, 11 October 2017

Secondly, a comprehensive response to detention practices requires further insights into alternatives to detention. The Council of Europe has been concerned with this for several years and has significantly advanced in taking stock of existing laws and good practices. At the end of September, Prague hosted a conference which addressed alternatives to detention with emphasis on refugee and migrant children. Although many states pass legislation on alternatives to detention, the practice of their implementation is lagging behind. This is a pity, because alternatives are less dangerous, less expensive and have been shown to be efficient in achieving the legitimate aims of migration governance. The Council of Europe will continue its work to assist member states with practical guidelines on implementing alternatives to immigration detention.

Thirdly, as regards statelessness itself, the Council of Europe Action Plan on Protecting Refugee and Migrant Children in Europe provides for the identification of practical solutions which would avoid statelessness among refugee and migrant children. Practical guidance with appropriate solutions will be drafted to assist states to improve administrative practices, to better address conflicts of laws, non-registration of births, and the risk of statelessness. The Action Plan views the identification of such solutions as a prerequisite for accessing many human rights. Our experience tells us that to move things forward, Council of Europe action needs to be backed by awareness-raising and an alliance of actors that will push for change.

In this sense, ENS’ #LockedInLimbo campaign is an excellent way of overcoming inertia, of keeping the issue on the table of decision-makers and in public debate, and I have expressed my support for the five recommendations for action outlined as an agenda for change. The campaign is a constructive way of fostering engagement at different levels and I hope its voice is heard and that it will contribute to increased safety to stateless refugees and migrants and to respect of their human rights.

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EVENT: Protecting stateless persons from arbitrary detention – 11 Oct (1-2pm); Council of Europe, Strasbourg

    Palais de l’Europe (in front of the hemicycle), Strasbourg
    Wednesday, 11 October 2017 (1-2pm)

Join the European Network on Statelessness at a #LockedInLimbo campaign event in Strasbourg on 11 October, bringing together key regional, inter-governmental and civil society groups working to protect stateless persons from arbitrary detention in Europe.
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ABOUT THE EVENT

The European Network on Statelessness (ENS), a civil society alliance with over 110 members in 40 European countries, has been running its pan-European #LockedInLimbo campaign to highlight the need to protect thousands of stateless people from being subjected to arbitrary and often lengthy detention simply because they have no country to call home.

On 11 October 2017 at a lunchtime reception in the Palais de l’Europe, ENS will present a public statement signed by organisations and high profile individuals from across Europe, which calls on European states to take action to end the arbitrary detention of stateless persons.

This event, hosted by Manlio di Stefano, Member of the Parliamentary Assembly of the Council of Europe (PACE) will bring together key stakeholders and provide a public forum to present action taken by PACE members championing the #LockedInLimbo campaign in countries across Europe.

Speakers include:

  • Manlio di Stefano, Member of Parliamentary Assembly of the Council of Europe
  • Tomáš Boček, CoE Secretary General’s Special Representative on Migration and Refugees
  • Chris Nash, Director of the European Network on Statelessness
  • Gert Westerveen, UNHCR Representative to the Council of Europe
  • Stephania Kulaeva, Director of the ADC Memorial

This series of short presentations will be followed by brief interventions from PACE members and an opportunity to network over refreshments. The event will be accompanied by an exhibition of photographs by award-winning photographer Greg Constantine.

Please RSVP by emailing ENS Head of Communications Jan Brulc at jan.brulc@statelessness.eu by 5 October. Participants requiring a security badge will need to RSVP by this date in order to receive one.



ENS is grateful to the UN Refugee Agency, Oak Foundation, the European Programme for Integration and Migration (EPIM) and the Sigrid Rausing Trust for their support of this event and the ENS #LockedInLimbo campaign.

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UNHCR’s new tool for identification and enhanced protection of stateless persons in detention

MELANIE KHANNA, CHIEF OF STATELESSNESS SECTION AND MADELINE GARLICK, SENIOR LEGAL COORDINATOR AND HEAD OF PROTECTION POLICY LEGAL ADVICE SECTION, DIVISION OF INTERNATIONAL PROTECTION, UNHCR

“Across the world, stateless persons face violations of their right to liberty and security. In some instances they have been in detention for years, not because they have committed a crime, but solely because they are not allowed to stay in the country and have nowhere else to go. If States don’t identify stateless persons and acknowledge their protection needs, such persons are at risk of repeated and prolonged detention. It is essential that States prevent and end this serious human rights violation.”

Filippo Grandi, UN High Commissioner for Refugees

When carrying out detention monitoring visits, monitors may come across persons whose statelessness situation has not been properly identified or not identified at all. Many of these persons generally do not possess identity documents or valid residence permits, or are unable to return to their country of origin, they can be at high risk of arrest and repeated and prolonged detention.

To help prevent such situations, UNHCR developed – the tool “Stateless persons in detention, a tool for their identification and enhanced protection”. The tool was presented to the audience of the regional conference on “Protecting Stateless Persons from Arbitrary Detention” organized by the European Network on Statelessness on 4-5 May 2017 in Budapest, Hungary. Before its launch today, the tool benefitted from important inputs by experts in detention and statelessness.

This tool sets out a series of questions that can help in identifying persons in detention who may be stateless. It also provides guidance on follow-up steps, such as statelessness determination or nationality verification, support to post-release solutions and challenge of detention decisions.

This tool maybe be used to identify stateless persons at any stage: before the decision to detain is made, when release in the community or referral to an alternative to detention are considered, or after the decision to detain has been made. The tool is intended for legal practitioners, decision makers and case workers who may be visiting detention places or are otherwise engaged in the asylum and migration process, including judges, border officials, staff of civil society organizations, UNHCR staff, as well as national human rights institutions and other national, international organizations that monitor immigration detention.

This tool has been developed under the auspices of UNHCR’s Global Strategy – Beyond Detention (2014-2019) and the #IBelong Campaign. With Beyond Detention, UNHCR advocates for and supports States to end the detention of asylum-seekers, refugees and stateless persons. Regular monitoring of immigration detention places is an important component of the Global Strategy. In 2014, UNHCR also launched a ten year Campaign to End Statelessness to draw attention to the plight of stateless persons and galvanize efforts of all of us to end statelessness. UNHCR’s Global Action Plan to end Statelessness sets out ten Actions to reach this goal. Part of organization’s advocacy efforts under the #IBelong Campaign in Europe is the call for the adequate identification of stateless persons.

In this regard, the tool comes as an important hands-on guidance to those carrying out the visits to detention centers, since UNHCR believes it is important to know that these persons are stateless. Not identifying them as such may affect negatively their recognition as refugees, their facilitated access to naturalization or to citizenship, or their protection on the grounds of their statelessness in the few countries that do grant such protection. Failing to find protection through any of these channels, stateless persons often end up with removal orders and in pre-removal detention, and then the waiting begins…

Prolonged and repeated detention of stateless persons is a concern in all regions, including in Europe. In Eastern Europe for example, stateless former Soviet citizens moving between successor States are repeatedly detained. Even stateless persons who have been in the same country for the last twenty years can be afraid to leave their village or their region because they know they risk detention. The prolonged detention of stateless former Soviet citizens throughout the successor States is with no doubt a very grave but one of the least known human rights violations in Europe.

UNHCR hopes it will be a useful tool for all the practitioners of any background who may be visiting detention places.

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#LockedInLimbo – The Netherlands can stop the detention of stateless persons

MARLOTTE VAN DAEL, ASKV REFUGEE SUPPORT AND CAIA VLIEKS, TILBURG UNIVERSITY

After being detained for the fifth time, Ivan from the former Soviet Union is out on the streets again. Or was this the sixth time in detention? He has lost count.

Ivan was born in what is now Uzbekistan. After he fled the country in 1990, he travelled through various countries before eventually arriving in the Netherlands in early 2000. The first time he was arrested, he was unable to show identification when he was walking down the street. This was the beginning of a vicious circle. The Dutch Repatriation and Departure Service (DT&V) has made numerous attempts to deport Ivan. He cooperated with the authorities by following the instruction of DT&V. He wrote to both the Russian and Uzbek embassies, but the status of these attempts remains unclear. After months of detention, returning Ivan to either country proved impossible. As Ivan himself describes “I am an ethnic Russian, born in Uzbekistan, from a country that is now 17 countries. I do not know who I am”. He is not allowed to stay legally in the Netherlands and build his future. Without recognition of his statelessness, Ivan’s freedom has been taken away too many times for fruitless attempts to deport him.

Individual freedom is, at the same time, one of the foundations of a state under the rule of law. That someone cannot be deprived of his or her freedom for no reason is a clearly follows from that. This is also enshrined in Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by means of a right to freedom and security. However, as the above case shows, persons are still placed in detention in the Netherlands even where there is no prospect of removal. Typically, the situation of stateless persons entails that no country feels responsible for the person concerned or is willing to take him or her back, precisely because they are not considered a national by any country. Only in exceptional cases, a country of earlier legal residence might be willing to accept such a person, but in most instances this will not be the case. If the country where the stateless person finds him/herself in then also does not take responsibility, that person faces a life in limbo.

ASKV Refugee Support and the European Network on Statelessness (ENS) have studied the situation in the Netherlands with regard to the detention of stateless persons in the context of ENS’s research project Protecting Stateless Persons from Arbitrary Detention. Despite some positive policy developments in the Netherlands in recent years, the study demonstrates that there are still a number of significant concerns. An important point in this regard is that the Dutch authorities do not recognise that statelessness usually means that return is impossible, because this is inherent to such status. This is significant given that an individual should not be placed in detention if there is no prospect of removal. This implies that it is necessary to establish whether a person is stateless before placing him or her in detention.

At the moment, the Netherlands has no such procedure for determining statelessness, but there are plans to introduce it. A functioning statelessness determination procedure could play an important role in the prevention of (arbitrary) detention of stateless persons who cannot be expelled. The ASKV/ENS study on protecting stateless persons from arbitrary detention in the Netherlands makes a number of recommendations for the identification of stateless persons, but also draws attention to alternatives to detention and the worrying living conditions in detention centres, such as lack of access to employment and education.

ENS’s research on the detention of stateless persons in six European countries reveals that stateless persons face long periods of detention without prospect of removal. ENS’s new report Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change and accompanying statement, co-signed by the authors of this blog and open for endorsement as part of the ENS #LockedInLimbo campaign, calls upon European states to take urgent action to end the arbitrary detention of stateless persons and those at risk of statelessness. In particular, the report makes five clear recommendations for reform of legislation, policies and practices so that they can be brought into line with international human rights standards. States can end the arbitrary detention of stateless persons in Europe, by:

1. Implementing a range of alternatives to detention in line with international standards and good practice, improving guidance to ensure that statelessness is considered as a relevant factor in all decisions to detain, and that decisions adhere to international standards on the prohibition of arbitrary detention.

2. Developing Statelessness Determination Procedures that meet international standards and good practice, are fully accessible to all those subject to their jurisdiction (including in detention), and which enable states to identify and grant protection to those recognised as stateless.

3. Putting in place robust mechanisms to protect individuals’ rights, respond to vulnerabilities, and exercise the duty to not discriminate, including through prohibiting the detention of children and combatting gender and disability related discrimination.

4. Facilitating integration in the community through providing protection from re-detention, access to basic rights and freedoms for those awaiting determination of their status, and regularisation and a facilitated route to naturalisation for those recognised as stateless.

5. Improving recording and reporting on statelessness, building accountability into the operation of immigration detention systems, publishing disaggregated statistics, and facilitating access for independent monitoring bodies, lawyers and community members.

It is clear that the Netherlands still has a number of steps to take if it is to end the arbitrary detention of stateless persons. For instance, statelessness needs to be taken into account as a relevant factor in all decisions to detain. Currently, this is not taken into account, which is one of the main reasons that stateless persons like Ivan repeatedly end up in immigration detention without prospect of removal. Furthermore, the proposal for a statelessness determination procedure in the Netherlands – which would be very helpful in combatting arbitrary detention of stateless persons – is full of major drawbacks. One of the most worrying weaknesses in the current legislative proposal is the lack of granting legal residence after statelessness is established. Also, the government is not planning to issue an identity document after determination of statelessness. This hinders integration and access to basic services, and makes stateless persons more vulnerable for re-detention.

Ivan, and other stateless persons that find themselves in a similar situation in the Netherlands, have the right to an accessible, well-functioning and fair determination procedure. After their statelessness has been established, they should be entitled to legal residence and facilitated naturalisation. Only in this way, will they have the opportunity to end their life in limbo and work towards a brighter future.

This blog also appeared (in Dutch) on NederlandRechtsstaat.nl.

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From Budapest to Strasbourg: taking forward the #LockedInLimbo campaign

NINA MURRAY, EUROPEAN NETWORK ON STATELESSNESS

Just over a month since we returned from three inspiring days in Budapest discussing and deliberating with our members and allies over how to protect stateless people from arbitrary detention in Europe, it feels like an opportune moment to provide an update on where we are at with plans for our #LockedInLimbo campaign and advocacy work.

The atmosphere at the European Youth Centre in Budapest during the conference was one of solidarity; of a desire to empower and give voice to the stateless women, men and children who find themselves locked up in legal limbo around Europe; and, of a drive to find solutions.  Over three intense and thought-provoking days, encompassing a full day of strategizing with the ENS membership, and two public days of plenary debates and participatory workshops focused on detention with 115 civil society actors, government officials, UN agencies, academics and lawyers from right across the region, important commitments were made and a wealth of ideas put forward. This week we published a Conference Report on our website, which summarises all of the key debates that took place in Budapest, so be sure to take a look.

In the weeks since Budapest, the ENS Secretariat and #LockedInLimbo HQ has been a hive of activity. In fact, I’m writing this blog from Strasbourg, where ENS is currently taking part in an important hearing before the Committee for Legal Cooperation of the Council of Europe (CDCJ) to feed into the codification of standards for the administrative detention of migrants in Europe. Discussions with civil society and other key stakeholders today have called for a fundamentally different approach to migrant detention in Europe, a shift away from the criminalisation of migrants, and a focus on the protection of fundamental rights. We made sure that statelessness was on the agenda.

In addition to taking our #LockedInLimbo demands to the Council of Europe, we also met with key stakeholders in Berlin and Geneva earlier this month at the Global Conference on Children’s Rights, and the Annual UNHCR NGO Consultations, building support for the campaign and fostering opportunities for advocacy and partnerships. And we have worked with UNHCR this week to contribute language on statelessness to the ongoing review of the EU Returns Handbook. At the end of May we launched our #LockedInLimbo campaign microsite and blog series, and we are now just three signatures from 100 endorsements of our Joint Statement calling for urgent action to protect stateless people from arbitrary detention.

Our members, too, have already been hard at work pushing for engagement and reform at a national level. In Russia, ADC Memorial, played a key role in an important victory for the protection of stateless people from arbitrary detention when the Constitutional Court issued a judgement that will allow for review of the legality of detention after three months and require specific timeframes to be put in place for removal procedures. In Serbia, we are working with our member, Praxis, and others, to make a joint submission to the Universal Periodic Review, highlighting concerns that new legislation currently before the Serbian Parliament will increase the risk of arbitrary detention of stateless people.

Such examples provide a flavour of the advocacy plans we will soon be launching on the back of the campaign. Next week we’ll be putting the finishing touches to these and preparing to embark on work with our membership to drive forward the #LockedInLimbo calls for reform at both national and European levels. A range of individual and organisational commitments to contribute to advocacy efforts were made in Budapest, from the simple, such as writing to MEPs and PACE members or supporting the campaign on social media, to the more complex, such as seeking funding for country level advocacy on detention, hosting training and awareness raising sessions for national officials, or persuading authorities to incorporate statelessness as a juridically relevant fact into all decisions to detain. Over coming months, we will be working closely with a core group of our members to support this work, building up to an event we will host here at the Council of Europe in October, and fostering the regional shift we believe we can achieve through a collective push for reform to law, policy and practice to protect stateless people in Europe from arbitrary detention.

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Victory in the Constitutional Court: #LockedInLimbo and the Pointless Detention of Stateless Persons in Russia

STEPHANIA KULAEVA, DIRECTOR OF ADC MEMORIAL

 

On 23 May 2017, the Constitutional Court of the Russian Federation issued a decision in the case of Noé Mskhiladze, which mandates strict judicial control and oversight over the length of the detention of stateless people, a defining moment for thousands of stateless people living in Russia who are held in detention without the prospect of their cases being resolved.

In the case of Noé Mskhiladze human rights defenders disputed the constitutionality of norms allowing for extended detention of stateless people for the purpose of expulsion from the Russia Federation. The Constitutional Court ruled that the Administrative code of Russia has to be changed in order to ensure the possibility for stateless individuals to appeal the state’s decision to detain. In addition courts will be obligated to define specific timeframes within which expulsion must occur, while those already in detention may have the legality of their detention reviewed after three months.

Noé was born in Georgia in 1972. He moved to Leningrad before the breakup of the Soviet Union, where he was educated and got married. He has not left Russia since 1990. He was never able to exchange his Soviet passport for a Russian one, even though he tried to resolve his status multiple times. At the same time Georgia refused to confirm his citizenship. As a result, he was left stateless. Noé was placed in a detention facility (also known as a SITDFN – Specialized Institution for the Temporary Detention of Foreign Nationals) in December 2015 with an expulsion removal order. A year and a half later Noé (and hundreds of other stateless persons born in the USSR and living in Russia) remains in detention.

Like many other stateless people, Noé is the victim of loopholes in Russian laws. Individuals who have lost their citizenship (or never had one) can be detained for “violating the migration regime,” and courts can issue a directive on their expulsion. They are then imprisoned in temporary foreign national detention centers. At the end of the two-year detention period (the maximum for “ensuring expulsion”), stateless persons are released from these centers without being issued any documents that would allow them to remain in Russia legally. This means that they are frequently re-imprisoned as violators of the migration regime, leading to what essentially amounts to indefinite detention, since it is impossible to deport stateless persons to any country and they may be re-detained at any point in the future. The situation of stateless persons with previous convictions is exacerbated by the fact that the Ministry of Justice issues decisions on the undesirability of their stay resulting in their placement in temporary detention centers for the purpose of deportation, which is obviously impossible.

Noé’s lawyers (he himself was not able to attend Court and could not even follow the proceedings online, being locked in a cell of the prison-like immigration Centre with no TV or Internet access) claimed violation of the Constitution of provisions of articles 31.7 and 31.9 of the RF Code of Administrative Offences which allow for the extended deprivation of a stateless person’s freedom for the purpose of expulsion. One of the main arguments was the non-implementation of the European Court of Human Rights (ECHR) decision on the Kim vs Russia: case where the court recognized violation of articles 3 and 5 of the European Convention on Human Rights in placing Roman Kim (a stateless man living in Russia) in detention for years, and ruled that

“Russian authorities should adopt general measures, including periodic court control of the legality of placing people into custody for administrative violations and checking the possibilities for administrative extradition in each case.

It is very important that Constitutional Court of the Russian Federation has directly quoted the ECHR and based its judgment on the Kim-case decision, namely:

The European Court of Human Rights also stresses that any deprivation of freedom must meet the Convention’s criteria for protecting people from the arbitrary will of the authorities and that the grounds for the legality of this deprivation of freedom cannot be interpreted broadly”.

The Court also noted that “the RF Constitution guarantees that each person has the right to freedom and personal inviolability; any restrictions introduced by law that involve the deprivation of freedom must meet the criteria of lawfulness”. The conclusion of the Constitutional Court was that norms of laws prohibit stateless persons from appealing the grounds for their detention for the purpose of  expulsion are under any circumstance unconstitutional.

Anti-Discrimination Centre Memorial (ADC Memorial) has been heavily involved in work on both cases – Kim vs Russia and the Noé Mskhiladze case in the Constitutional Court of Russia. It was not only by providing legal support, but also through advocacy efforts and research work that ADC Memorial worked to support detained individuals and to bring about systemic change. A year ago, ADC Memorial issued the Human Rights Report  “Violations of the Rights of Stateless Persons and Foreign Citizens in Light of the ECHR Judgment in “Kim v. Russia”. The report gathered evidence of inhumane and degrading treatment within the deportation centers in Russia. An update of this report was published a year later. “Imprisoned Stateless Persons in Russia: The Search for a Way Out of a Legal Dead End” included photographs taken by the stateless detainees in deportation centers illustrating the inhumane conditions, most notably photos and commentary by Viktor Nigmatulin, detained in Kemerovo (Siberia)  and by Noé Mskhiladze in SITDFN of St. Petersburg.

The judgement in the Noé Mskhiladze case, brings promise of real change and improvement in the situation for all stateless persons in detention in Russia. It is in fact a crucial stage in a cycle of advocacy and litigation efforts that have lasted for several years. Courts will now be obligated to define specific timeframes within which expulsion must occur, while those already in detention may have the legality of their detentions reviewed after three months.

Roman Kim and Noé Mskhiladze, like thousands other stateless people spent years in immigration centers, where their basic rights were violated. As a result of the judgement such violations should no longer occur—this is a tremendous victory for the claimants themselves, their attorneys (Olga Tseytlina and Sergey Golubok who submitted Mskhiladze’s complaint to the Constitutional Court), human rights defenders and in fact all stateless people in Russia.

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#LockedinLimbo: The Continued Detention of Stateless Persons in the UK

LEWIS KETT, SOLICITOR IN THE PUBLIC LAW TEAM AT DUNCAN LEWIS SOLICITORS

On 4-5 May 2017, myself and two colleagues from Duncan Lewis had the privilege of joining a delegation of over a hundred and twenty people – lawyers, NGOs, international charities, campaign groups and other stakeholders – for a conference held by ENS in Budapest for the launch of their new report, “Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change” and a wider #LockedinLimbo campaign to canvass European governments to end the arbitrary detention of stateless persons and aim to build a consensus across Europe that the current use of immigration detention is unsustainable, harmful, and, in many cases, unlawful. The conference was an opportunity to allow like-minded persons the platform to discuss their experiences of this issue within the respective countries and to discuss ideas on how to coordinate an end to the arbitrary detention of stateless persons across the region.

The United Kingdom, like many of its European counterparts, has been slow-moving and complacent in its attempts to address the issue of statelessness. Despite being one of the original signatures to the 1954 Convention Relating to the Status of Stateless Persons, the UK only introduced a procedure to identify stateless persons, and consider them for leave to remain on this basis, in 2013. However, the recognition rate is worryingly low. As of 30 June 2016, a total of 1,662 applications were made to the Home Office. Of these, 854 received a decision with only 41 being granted leave to remain, just under 5%. If it were not for the invaluable work of the likes of Asylum Aid and the Liverpool Law Clinic, these figures would be even lower.

The reasons for this low rate vary, and include the government’s unwillingness to provide legal aid for these applications (albeit the Legal Aid Agency have been able to provide it in some exceptional cases), a lack of understanding of the process (from applicants, lawyers and Home Office decision makers themselves) and an inability of persons to prove a negative (in cases where the Home Office believe a person is a national of a country but the person cannot prove otherwise). But the most concerning reason for many refusals is that simply to be recognised as stateless under the 1954 Convention is not enough to be granted leave to remain. The UK have introduced additional hurdles, including meeting the general grounds of refusal contained in the Immigration Rules, and the bizarre need to show they have provided all reasonably available evidence to enable the Home Office to determine whether they are stateless (as a separate requirement to showing you are recognised by the Home Office as stateless under the 1954 Convention).

The UK’s continued lack of understanding regarding the rights and needs of stateless persons is most obviously seen in the continued practice of detaining such persons under immigration powers. The purpose of immigration detention in the UK is to effect removal, and the UK’s powers to detain are curbed by the requirements to show that detention is only used for that purpose, that the period of detention is reasonable in all the circumstances, and that they act with reasonable diligence and expedition to effect removal. However, the reality remains that stateless persons are simply not removable as there is no country that will receive them, and as such immigration detention will always be arbitrary.

Unfortunately it is often their statelessness, and the UK’s reluctance to accept this fact, that results in such persons being detained for an even longer period of time. The Home Office will spend several months, even years, justifying detention on the basis they are acting with ‘reasonable diligence and expedition’ by going from country to country lining up travel document interviews from embassies and high commissions that simply will never recognise the person. This is invariably followed by blaming the detainees for their prolonged detention by not providing their true identity, and accusations of non-compliance when a detainee refuses to undertake the fifth or sixth interview with the same high commission that has already rejected them on multiple occasions.

The UK’s failings can be demonstrated by our case last year, the misleadingly titled ML (Morocco) v SSHD [2016] EWH 2177, one of the few UK-based cases that have sought to argue detention was unlawful on the basis of the juridical relevant fact of the claimant’s statelessness. Our client ML, a Sahrawi, was born in a refugee camp in Tindouf, Algeria, to parents from the region of Western Sahara. The refugee camp in Tindouf was on the border with Western Sahara and was run by the Polisario Front, the national liberation movement seeking to bring to an end to the Moroccan occupation of Western Sahara.

ML had a very difficult childhood in which education was almost non-existent. His parents were killed in the conflict between the Polisario Front and Morocco when he was 9 years old. He was detained in Tindouf when he was 11 years old for two years by the authorities alongside 15 other men/boys without explanation. The conditions were unbearable, dire and overcrowded, he was given limited food and water and he would be regularly beaten. The conditions were so bad that he developed sores all over his body and he still bears scars from this.

He managed to escape with others after a couple of years before fleeing elsewhere in Algeria, before spending time in Mauritania and Morocco. In each country, he felt like an outsider, unsafe and alone. From Morocco the client fled to Spain before making his way to the UK in 2003 (unwilling to stay in Spain due to their colonial history in Western Sahara). He claimed asylum on arrival but due to a lack of understanding of the system and lack of representation, he did not comply with the process.

From thereon in, ML tried to fend for himself in the UK, forced to stay off the radar and find what limited work he could to survive. However, economic insecurity, regular homelessness and increasing mental health issues dating back to his childhood, started to take its toll. This led to an unfortunate cycle of drug dependency and criminal offending to pay for it. This only further increased his mounting mental health issues, later being diagnosed with schizophrenia.

Following a sentence for criminal damage and affray in 2013, he finally came back to the attention of the UK authorities and was detained in various IRCs under immigration detention. His health records from the outset noted his history of mental health illness, most notably his schizophrenia.

In early 2014, the Home Office made an attempt to obtain a travel document from the Western Sahara Mission in London, notwithstanding that the UK government do not recognise Western Sahara as a country and despite overwhelming evidence that this Mission in London had never issued a travel document. Unsurprisingly, the application for a travel document was refused.

Undeterred by these facts, the earlier rejection, and despite the clear implication this evidence provided as to our client’s stateless, the UK persisted with a second application to the Western Saharan mission in 2015 after obtaining a document which suggested our client’s father had been born in Western Sahara, a fact not in dispute. That the document was from the UN Mission for the Referendum in Western Sahara (MINURSO) inviting the client’s father to vote on the possibility of independence for Western Sahara was still apparently not enough to alert the Home Office to the fact it was not a recognised state. Instead they saw it as new evidence to renew their efforts with the Mission in London.

Eventually, the Home Office relented in their attempts to remove our client to Western Sahara after it was pointed out by the Foreign Common Wealth office that Western Sahara is not a state recognised by the UK. That the body of government responsible for removing foreign nationals are unaware of what countries the UK do or do not recognise would be comical were in not for the fact it results in detainees like our client continuing to languish in detention with no prospect of removal.

Yet the Home Office continued to press on with our client’s removal, setting up doomed attempts to obtain an Emergency Travel Document (ETD) from Morocco (and as revealed on the day of our client’s unlawful detention hearing, Algeria – his place of birth). All the while, our client remained detained, struggling to cope with his ever deteriorating mental health. His period of detention saw regular periods of self-harm and food refusal protests, and there were multiple occasions in which he attempted to hang himself. Periods of time spent in the segregation unit and on constant watch were regular.

The resulting judgment by the Administrative Court in our client’s unlawful detention, unfortunately, reveals the continuing misunderstanding of the relevance of statelessness on the decision to detain (and maintain detention). The court dismissed the Judicial Review application, finding that the Home Office at all times acted with ‘reasonable diligence and expedition’ to effect removal and that our client’s risk of absconding and re-offending increased the period reasonable to effect removal. Our client’s statelessness was given very limited consideration by the court, failing to focus on the fact that he was at no point removable and that this should have been recognised by the Home Office at a much earlier stage, if not from the outset. No amount of hopeless applications to a country not recognised, and to countries that do not recognise our client, should justify this. It is hoped that the Court of Appeal will view this important point of principle in a different light (permission to appeal remains outstanding).

For the time-being our client has been released from detention, and the UK are no closer to obtaining the travel document they assert they can obtain to effect his removal. The unfortunate reality however is that our client remains in-limbo with no legal status in the UK, and still vulnerable to being redetained.

ENS’s important new report and campaign are vital tools to continue raising awareness to European nations on the importance of protecting stateless persons from arbitrary detention. Their calls for greater understanding and identification of statelessness alongside proposals for the increased use of alternatives to detention should be applauded, and to have the opportunity to listen to ENS and other stakeholders share their experience and ideas at their recent conference was inspiring. Our firm echoes ENS’s advocacy to end the detention of stateless persons and will continue to challenge the UK government in this respect.

Lewis Kett, the author, is a Solicitor in the Public Law team at Duncan Lewis Solicitors. He regularly deals with challenging unlawful decisions of the UK government, with a particular interest in refugee law and immigration detention. In April 2016, he was the first trainee solicitor to be named the Times ‘Lawyer of the Week’ for his work in obtaining refugee status for a former Afghan interpreter who the UK had attempted to remove to Afghanistan.

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Unlocking limbo: how a culture change and the application of existing norms can reduce arbitrary detention

 AMAL DE CHICKERA, CO-DIRECTOR OF THE INSTITUTE ON STATELESSNESS AND INCLUSION

Seven years is a very long time. In the last seven years, many things have happened in my life that have shaped me in ways I cannot begin to grasp. Just as my children who were born five and two years ago created space for themselves in my life that I didn’t know existed, the passing away of friends and loved ones has left voids that cannot quite be filled. Professionally, I feel privileged to have been there from the very beginning, as both the European Network on Statelessness and the Institute on Statelessness and Inclusion (where I now work) were established. Politically, I was proud that my vote helped oust a president with authoritarian aspirations in my own country Sri Lanka, but dismayed that it could not help prevent my adopted country – the UK – from deciding to leave the EU. My life has evolved and changed over the last seven years in ways I would never have been able to predict.

Please do take a moment to reflect on your own life over the past seven years. The personal, the professional, the public. It’s amazing how much can happen in seven years.

Now imagine wiping out the last seven years of your memories one by one. Replace them with the sameness, the helplessness, the boredom, the frustration, the despair, the unbearableness, the mundaneness, the trauma, the absurdness, the injustice of arbitrary immigration detention. Think of everything you would not have been able to do, everyone you would not have been able to touch. Think of Anton, who was detained for seven years in Bulgaria because he was stateless.

Seven years is a very long time. For some, it is longer still.

In this blog, I draw on the lessons I learnt, as I coordinated and led on ENS’ research into the arbitrary detention of stateless persons around Europe. Under this two year project, ENS, in collaboration with its member partners, produced six country reports (Bulgaria, Malta, the Netherlands, Poland, Ukraine and the United Kingdom) as well as a Regional Toolkit for Practitioners and an Agenda for Change. The process we undertook to research and produce these different outputs confronted us with the very real and degrading impact of arbitrary immigration on normal people caught up in extraordinary circumstances. It also showed us that arbitrariness in immigration policy does not work. Furthermore, it showed us that we already have in place the right standards to protect against arbitrariness, protect individual liberty and rights and enhance efficiency. Unfortunately, these standards are paid lip-service to on a regular basis, but are often disregarded in practice.

Before getting further into the substance,  it is worth reflecting on the words of some of the people we encountered in our research. Angela, Muhammed, Okeke, and of course, Anton, who are all quoted in the  report: ENS Agenda for Change:

“the documents I do have tell me I’m of unknown nationality. Officially, I still don’t exist”

“Detention made my mental health worse. It started when I got into detention. There they do not care if you cry”

“Immigration detention is far far worse than prison because there is no time limit”

“Why did they hold me for 7 years and give me nothing”

When we have technical legal discussions about rights and their limitations, about what constitutes arbitrariness and why it is so important to identify statelessness; it is easy to forget that what we are often really talking about is man-made systems that disbelieve people exist, cause mental illness, punish immigrants more harshly than criminal offenders, and throw them back into society, with nothing.

Such institutional and bureaucratic cruelty – displayed in all six research countries and no-doubt, occurring across Europe – is a standard against which our societies will be judged. It is what the ENS project and its research has brought to light. It is why the ENS Agenda for Change is so important.

The legal framework

European countries are spoiled for choice when it comes to legal frameworks. All countries are party to the UN human rights treaties including the International Covenant on Civil and political Rights (ICCPR) and the European Convention on Human Rights (ECHR). Many are also party to instruments of the EU, including the Returns Directive. A deeper analysis of what these instruments say in relation to arbitrary detention can be found in the ENS Toolkit for Practitioners.

While the ICCPR and ECHR approach the right to liberty and security of the person differently, both contain strong protections against arbitrary detention. According to some of the common standards which universally apply whatever the framework, detention will be arbitrary unless it is inter alia:

  1. provided for by national law;
  2. carried out in pursuit of a legitimate objective;
  3. non-discriminatory;
  4. necessary;
  5. proportionate and reasonable; and
  6. carried out in accordance with the procedural and substantive safeguards of international law.

There are other standards also at play and even the notion of arbitrariness has more to it than these six aspects. For example, detention which is ‘lawful’ can still be arbitrary on other grounds. However, for the purposes of this essay, I would like to pick out three of the criteria under the arbitrariness test for deeper exploration: ‘legitimate objective’, ‘necessity’ and ‘non-discriminatory’.

1. What is a ‘legitimate objective’?

The ECHR is much clearer than the ICCPR on what constitutes a ‘legitimate objective’ for detention. Article 5(1) sets out an exhaustive list of six legitimate objectives for detention. Of these, Article 5(1)(f) is squarely relevant:

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition

Importantly, it is never a legitimate objective under the ECHR, to detain someone purely to establish their identity, or to prevent them ‘disappearing’ into society. While these may be factors to consider when deciding if detention is necessary, proportionate or reasonable, they are not legitimate objectives in their own right.

A second key point, is that having a ‘legitimate objective’ alone is not adequate grounds to detain. This legitimate objective must also be ‘achievable’ within a reasonable timeframe (often a challenge with removing stateless people); it must be pursued with ‘due diligence’ at all times (so for example, the burden of documentation must not fall on the individual) and importantly, it must also comply with all of the other criteria under the ‘arbitrariness test’.

2. Necessity

The word ‘necessary’ is often used too lightly in real life and in legal discourse. I often correct my son when he says ‘I need some chocolate’. He really means, ‘I want some chocolate’. The same is true of the exercise of state power to detain – which, (it is worth reminding ourselves) – is to limit the enjoyment of one of the most fundamental of human rights, the right to liberty.

If you look at the growth of immigration detention as a practice; how it has crept up on us as a new ‘normal’ aspect of immigration policy, it is difficult to see how much of this is a result of sheer necessity, and how much of it is more about administrative convenience, complacency, deterrence and other factors which are legally irrelevant. How much has changed in the world in the last 15-20 years, to warrant the increasing use of immigration detention as a matter of necessity? Did Bulgaria have no choice but to detain Anton for seven years? If so, why was he then released?

It is important to ask therefore, if even where there is a ‘legitimate objective’ that is ‘achievable’ within a reasonable timeframe; is detention necessary to fulfil that objective? It is on this question that issues such as ‘risk of absconding’ come into play. A state may conclude that ‘yes it is necessary, because if the individual is not detained, she is likely to abscond’. But this state may be asked, ‘are there other ways to minimise the risk of absconding? By caseworker support? By surety bail? By other alternatives to detention?’

Alternatives are often put forward as a ‘good practice’. As states being ‘nicer’ than they are obligated to. But actually, they are an integral component of the principle of necessity. To be able to truly say that detention is necessary, states have to be confident that they have at their disposal, a wide range of suitable alternatives and that none of them would do; that they simply have no choice but to detain.

In other words, for states truly to be adhering to the principle of ‘necessity’, there should be a cultural aversion to detention. Immigration officials should be rewarded for successful removals without detaining. They should also be rewarded for recognising when removal is not possible. The whole focus must shift to only – truly – using detention as a last resort.

A final point on necessity. The principle of proportionality is also relevant to the necessity argument. So even if you deem detention necessary, is this still a proportionate response? How much does the state value the principle of liberty, and to what extent is it willing to compromise on it to achieve removal? These are discussions and debates we should be having as open societies, but which we never had the chance to, while immigration detention crept up on us. Is it now too late? Do we have the appetite for this?

3. Non-discrimination

The principle to not discriminate is a fundamental human right and also a central component of the non-arbitrariness test. The obligation to ‘not discriminate’ is not an obligation to treat everyone the same. And so, here is a two minute ‘short-course’ on non-discrimination:

  • Discrimination is about unfavourable treatment, detriment, disadvantage or harassment suffered by someone, related to a personal characteristic or “prohibited ground” (such as race, gender, disability etc.).
  • Direct discrimination occurs if a person, on the basis of any of the protected grounds, subjects that other person to a detriment or treats that person less favourably than they would treat other persons whose relevant circumstances are not materially different.
  • Indirect discrimination occurs when a provision, criterion or practice is applied equally to all persons, but would put persons to whom a particular protected ground applies at a particular disadvantage when compared with other persons.

Accordingly, detaining all persons who are subject to removal proceedings can be indirectly discriminatory treatment of those who cannot be removed within a reasonable period of time due to their statelessness.

Crucially, in order to protect a group against discrimination, they must first be identified. It is essential to identify statelessness or the risk of statelessness, in order to protect such persons from discriminatory treatment, be it direct or indirect. This is why it is so important that states have statelessness determination procedures in place, and that those subject to removal and to detention proceedings have easy and free access to these procedures. The state which does not put these frameworks in place, risks discriminating. It risks subjecting people to arbitrary and unlawful detention.

And there it is. See how very quickly this all becomes quite technical. Arbitrariness, necessity, proportionality, discrimination, due process, due diligence. Where is the person in all of this? The human being whose rights are paramount? Where are Anton, Muhammed, Angela, Okeke amidst all of the jargon? The seven years wasted, the mental health deteriorated, the identity denied, the harsh treatment endured? How do we ensure they are kept at the centre of the discourse?

Common challenges

Moving away from the legal framework, what project’s common challenges can we can draw from the research findings?

The data challenge – One of the biggest challenges all country researchers faced, was accessing credible data and information on statelessness in general, and on statelessness in the detention context in particular. This lack of data – and in many cases, the existence of conflicting data – made the research very difficult. But more importantly, it serves as an indication of how unimportant this issue is to states. Europe is perhaps the most ‘counted’ continent in the world. But there is so very little data on statelessness. This makes it difficult to advocate, it also makes it difficult to respond at a policy level. And, without capturing this information, it becomes very difficult to protect against discrimination and arbitrariness.

  1. The definition challenge – in many of the countries researched, the definition of, or approach to statelessness is narrower that the 1954 Statelessness Convention definition. For example, while the 1954 Convention defines a stateless person as someone who is not considered a national by any state ‘under the operation of its law’, Ukrainian law uses the term ‘in accordance with its law’. This may seem like a minor divergence, but it potentially excludes from protection, many people who ‘should’ be recognised as citizens by a particular state, but are not.
  2. The alternatives challenge – While all states have some kind of alternatives in place, none have a satisfactory range, to meet different needs and vulnerabilities. Importantly, in most contexts, alternatives are not looked at first (as international law requires). Instead, they are looked at last, once it becomes clear that detention has failed and removal is not possible. By then, the damage has already been done.
  3. The identification challenge – some of the countries researched have Statelessness Determination Procedures (SDPs) in place, others are in the process of introducing them and still others have no SDP at all. But none of them made the SDPs easily accessible to those subject to removal or detention, or had a referral system in place. It appears that states perceive the identification of stateless persons as fulfilling a very specific and narrow function, which does not extend to protection from the arbitrary deprivation of liberty.
  4. Those with criminal records – the most vulnerable group to arbitrary detention, are those who have a previous criminal conviction. The intransigence of states when dealing with these persons, the refusal to apply alternatives and the insistence on removal even where it is clearly not possible, is disproportionate and discriminatory. Particularly so, when considering that many of the ‘criminal’ records are for survival crimes associated with irregular status. It is an extraordinary cruelty that forces someone into criminality and then arbitrarily continues to punish them for it, after they have served their sentence.
  5. Release & integration – where removal proved impossible and stateless persons were released, another common challenge was the failure to ensure these persons have a legal status and stay rights. As the research found, release into ‘illegality’ is a recipe for re-detention.

The Agenda for Change

These are some of the challenges, human rights violations and contradictions that are captured and addressed in the ENS Agenda for Change. They are covered in summary recommendations under the five headings of:

  1. Alternatives to detention
  2. Identification of statelessness
  3. Addressing vulnerability and protecting against discrimination
  4. Integration in the community
  5. Monitoring and implementation

This is the agenda I hope we will all be able to work towards. Ultimately, it boils down to, what I believe is one simple truth:

It should be intolerable to us all, that the laws, frameworks and institutions that protect our rights, that we take for granted and are celebrated as a hallmark of civilisation; are being manipulated, curtailed, misapplied and ignored, to undermine these very same rights of the stateless; to scapegoat them as the problem, to impose an impossible burden on them and entrap them when fail, to distrust them and punish them for our distrust.

The only real question is, “What are we going to do about it?”

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Why we need a strong voice to stop stateless people ending up #LockedInLimbo

MANLIO DI STEFANO, MEMBER OF THE PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUROPE

I very much welcomed the opportunity to speak at the recent European Network on Statelessness (ENS) conference in Budapest on 4-5 May which launched their new report ‘Protecting Stateless Persons from Arbitrary Detention – An Agenda for Change’ and related #LockedInLimbo campaign.

Both the report and the conference higlighted many stories of those locked up in detention for long periods of time simply because they don’t have a nationality. The ENS report underlines how we are avoiding our international obligations to protect people with no nationality, and instead subjecting these men, women and even children, to unlawful detention.

Arbitrary detention has severe and long-lasting effects on the mental health of those detained. The stories I read about in the report are truly disturbing and distressing, and I believe that everyone would find it unacceptable if they knew what was happening in detention centres across Europe.

A growing number of my parliamentary colleagues are also becoming aware of the specific challenges facing stateless people and we will have further opportunity to focus on these concerns next month when I report back to the Council of Europe Parliamentary Assembly on this issue.

At the conference in Budapest I publicly signed and endorsed ENS’s #LockedInLimbo campaign statement which calls on European Governments to end the arbitrary detention of stateless people, and which outlines five key recommendations to help achieve this.

I believe we must all work together to achieve this fundamental goal, and would add my voice in encouraging other interested organisations to also sign the below statement and help support this important campaign.

Sign the statement

Join the #LockeInLimbo coalition.

 

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