New report finds problems for stateless persons in detention remain deeply entrenched
A new report by the European Network on Statelessness (ENS) examines protecting stateless persons from arbitrary detention in the UK.
The report is the fourth in a series of country reports highlighting the gaps and raising awareness about the extent of the issue and impact on stateless people. You can read it here.
ENS find in the report that the UK has witnessed considerable changes in relation to addressing statelessness in recent years, but overall the national legal framework of the UK falls short of its international and regional obligations.
The summary of the report states: "Neither the UK legislation nor the guidance which govern the administrative deprivation of liberty address the specific vulnerabilities of the stateless. While the Immigration Acts 1971 to 2016 provide that the only stated purpose for administrative detention is to examine someone's immigration status, or to facilitate removal or deportation, administrative detention has been increasingly relied on to the point of becoming a central feature of many asylum cases and related immigration enforcement policy. In particular, it has become routine practice to detain former foreign nationals who have served a prison sentence if they have a deportation order that the HO seeks to enforce or if a decision to deport them is pending. Although the HO policy in the Enforcement and Instructions Guidance states that that detention must be used "sparingly" and for "the shortest period necessary", there is no statutory time-limit to immigration detention. As a result, detention can last for months or years, especially for cases of persons whose identity and nationality are difficult to establish."
The report does identify positive developments, namely the reduction of detention of children and families, and the recent introduction of an automatic bail hearing after four months of detention.
The summary of the report continues: "In spite of several positive developments in the field of statelessness, in particular with the adoption of the statelessness determination procedure in 2013, a number of problems remain deeply entrenched. In general, access to the procedure for those in detention is too limited. The situation of stateless persons is easily misunderstood and the biggest issue is that the authorities fail to acknowledge that in most cases of statelessness, return is intrinsically impossible. Since detention should only be imposed as long as a reasonable prospect of removal exists, there is a due diligence requirement to rule out statelessness prior to any decision to detain. In practice the prospect of removal is too easily assumed to exist and the examination of personal circumstances including the juridically relevant fact of statelessness figure insufficiently, or not at all, in decisions to detain.
"This also impacts on the length of a person's detention. The length of detention in the UK does not have any statutory limit and stateless persons are more likely to be detained for long periods. This is especially concerning where the inability to return is not due to an individual's lack of cooperation but because of some embassies' systematic refusal to facilitate the return of their nationals. The UK is aware of these 'difficult countries' and the fact that in several cases long-term detention has not resulted in removal. Here administrative detention appears to have become punitive in nature and intended to act as a deterrent instead of a measure of supervision.
"One of the most important contributions the UK government can make towards the lives of stateless people is to end what has often amounted to a lifetime of uncertainty. Without clear solutions, stateless persons will continue to fear repeated detention, while also being unable to return. Even when released, few of them perceive a solution, and they are often left to live aimlessly and invisibly on the margins of society. Actively utilising the threat of detention to enforce their cooperation to be removed is simply inhumane, but also mostly ineffective. As the UNHCR has highlighted, "for detention not to be arbitrary, it must be necessary in each individual case, reasonable in all the circumstances, proportionate and non-discriminatory.""
Reuters covered the report here, with ENS director Chris Nash telling Reuters that stateless persons were being subjected to "prolonged and pointless detention" as Britain tries to remove them even though no country will accept them.
Nash was quoted as saying that many stateless people were "falling through the cracks": "Failure by the Home Office to put in place effective systems to identify stateless persons leaves some of the most vulnerable individuals exposed to repeated and lengthy detention."