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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?”