Immigration detention is an increasingly common phenomenon in the world today. In one of the great contradictions of our times, as the world gets smaller and travel easier, borders are getting more difficult to cross and the stakes for crossing them irregularly are getting higher. For citizens of developed countries – in whose favour all migration policies seem to have been drawn – and (to a lesser extent) for the affluent of other countries, the world truly is their oyster. For the underprivileged, those escaping poverty and even persecution, it is a very different beast – far less welcoming, far more dangerous. In this sense, globalisation has further polarised the haves from the have nots, to the extent that (contrary to established principles of international human rights law), irregular migration is punished and not merely controlled – and detention is the primary tool being used.
At the very bottom of the pecking order are stateless persons, those who do not have a nationality (or who have a nationality which is ineffective) and consequently find themselves living perpetually in countries that they cannot call their own. Stateless persons who come into contact with immigration authorities are vulnerable to being picked up, processed and locked up in detention ‘pending removal’, the only caveat being that removing a stateless person from one country to another is an extremely difficult (if not impossible) thing to do.
We are not dealing with insignificant numbers here. Conservative estimates put the global stateless population at 12 million, of which over 600,000 live in Europe.
The majority of the world’s immigration regimes do not seem to have taken the phenomenon of statelessness into account when developing their intricate, complex and at times confusing policies. There are some exceptions (Spain and Hungary being two), but most immigration regimes do not have fair systems in place to identify stateless persons; nor do they have exceptions in place to accommodate the unique context of statelessness. Stateless persons are processed like all other irregular migrants, they are channelled into procedures that do not understand them, and removal proceedings are enforced against those who are deemed unfit to remain, simply because it is the done thing. This leads to situations where stateless people become stuck indefinitely in the immigration system. The victims of these oversights are human beings and the cost of long-term detention is unbearable.
Omran Mohamed is a stateless Palestinian whom I encountered during my research two years ago. At the time, he was a detainee in Campsfield House near Oxford in the United Kingdom. Omran spent a staggering 33 months in immigration detention before he was finally released on bail on account of the fact that he could not be removed from the UK; a fact that was more than evident much earlier on in his detention. Ironically, throughout his detention at Campsfield House, Omran pleaded to be returned to his home in Gaza, as he preferred the freedom of one of the most dangerous places on earth to the frustration and humiliation of detention in picturesque and peaceful Oxford. His wishes were never met as the UK authorities were unable to return him. The tragedy of his story is that the authorities were blind to the third option – release within the UK – until 33 months later, when they were ordered to do so by judicial authority. These 33 months of confinement cost the UK government tens of thousands of pounds and Omran something less tangible and far more valuable.
Omran is one of countless stateless persons who have spent (and continue to spend) unnecessary hours, days, months and years languishing in immigration detention through no fault of their own. The unfairness of a system which further penalises those who have had to endure life without the protection of a state is self evident, and what is most shocking is that many of the practices promulgated by immigration detention regimes are in violation of international human rights law.
States do have the sovereign right to protect and control their borders. But they have an obligation to do so in a manner which promotes, protects, respects and fulfils the human rights of all persons within their jurisdiction. There has been a failure to do this in respect of migrants and non-citizens generally, and a failure of much greater proportions with regard to the stateless. One of the main reasons for this failure is that immigration control has long been viewed as an area in which greater executive discretion is required. Courts have consequently trodden carefully when determining whether immigration control has violated the human rights of non-citizens, and generally allowed the authorities to act with much greater discretion – and impunity – than would be tolerated in other contexts.
The Equal Rights Trust (ERT) has been doing research and advocacy on the rights of stateless persons over the past three years. In our 2010 publication Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons, we called for the adoption of international standards on the detention of stateless persons. We have moved a little closer towards this, through the publication of ERT’s Draft Guidelines on the Detention of Stateless Persons, along with an Introductory Note to them. The Draft Guidelines primarily address the detention of stateless persons, but also recommend the implementation of national statelessness determination procedures.
These Draft Guidelines provide detailed guidance on how states should treat stateless persons in order to comply with their obligations under international human rights law, in particular, the rights to equality and non-discrimination and the right to be free from arbitrary detention. The Draft Guidelines mainly reflect established principles of international human rights law, while a few reflect international good practice.
According to the current draft, 'the detention of stateless persons for purposes of identification, status determination or removal is inherently undesirable and there should be a presumption against their detention' (Guideline 24). Despite this fundamental principle, it is acknowledged that in very limited contexts, detention would still legitimately occur. Therefore, the Draft Guidelines further state that detention should never be arbitrary (Guideline 25) and it should be carried out in pursuit of a legitimate objective, be lawful, non-discriminatory, necessary, proportionate, reasonable and carried out in accordance with the procedural safeguards of international law (Guideline 26). Perhaps most importantly in the context of statelessness, detention should always be for the shortest possible time and there should be a reasonable upper time limit for detention (Guideline 45).
There are sixty-six Draft Guidelines in all, and we hope to finalise and publish the Guidelines after a period of consultation with international experts and the general public. After publication, the Guidelines will be proposed for adoption by key intergovernmental and governmental institutions, and by human rights and other civil society organisations. They will also be disseminated widely. The Guidelines will be the standard that we promote in our advocacy on the detention of stateless persons both nationally and internationally.
We hope that the Guidelines will bring us one step closer towards achieving greater protection for stateless persons. In a world in which the odds are heavily stacked against them, they need all the support and solidarity they can get.
This article is part of the 50.50 dialogue People on the Move