The Legal Limbo of Detention

By Perks, Katherine; Clifford, Jarlath | Forced Migration Review, April 2009 | Go to article overview

The Legal Limbo of Detention


Perks, Katherine, Clifford, Jarlath, Forced Migration Review


Of the broad range of human rights violations suffered by stateless people, that of the right to be free from arbitrary detention has received little attention. The extent and scale of the problem are not fully known.

Physical restriction, including prolonged or indefinite detention, of those who have no effective nationality is increasingly common around the world.1 Prelirninary analysis of available research suggests that practically all types of stateless persons may be at risk of arbitrary detention. Without the full set of rights available to citizens, stateless persons face a greater likelihood of discrimination in the administration of justice, harassment and arbitrary detention. One common problem faced by stateless persons - as also by IDPs - is a lack of documentation which can leave them more vulnerable to rights violations.

Very little information is available on the plight of stateless persons in detention in their country of habitual residence; research suggests that this is not only because by their nature stateless populations are often 'hidden' but also because relatively little international attention has been paid to stateless populations. It seems that human rights research rarely identifies statelessness as a factor when reporting on individual detainees in their country of origin or habitual residence.

A growing body of information suggests that stateless people who are migrants, refugees or asylum seekers are extremely vulnerable to arbitrary detention and other forms of restriction, including irnmigration detention and restriction in closed refugee and displaced persons camps. The UN Working Group on Arbitrary Detention has found that "a straight analysis of the statistics indicates that in some countries the numbers of noncitizens in adrninistrative detention exceeds the number of sentenced prisoners or detainees, who have or are suspected of having committed a crime."2 An unknown number of stateless persons are caught up in such practices and held with other non-citizens in adrninistrative detention, whilst their status is being determined, or 'pending removal' under immigration regulations.

Arbitrary detention

While the administrative detention of asylum seekers and irregular migrants is not expressly prohibited under international law, it can amount to arbitrary detention if it is not absolutely necessary given the circumstances. UNHCR and others have developed guidelines on alternatives to detention.3 Even where detention is not initially prohibited, it may become arbitrary over the course of time owing to the length of detention.

Furthermore, discussions concerning the legality of detention of stateless persons, whether de jure or defacto, must be guided by the fundamental principle of equality. This does not necessarily require identical treatment but rather different treatment according to the needs and particular circumstances of the individual. In order to fulfil this principle, a first step must be an appropriate status determination procedure capable of identifying stateless persons as a category of persons with unique protection needs. Although the issue of prolonged or indefinite detention of de jure and defacto stateless persons has reached the courts in a number of countries, the issue of discrirnination is rarely addressed.

The situation of a stateless person differs fundamentally from that of other non-citizens. For example, legally stateless persons can be subject to lengthy detention while their status is being determined, owing to the delays inherent in attempting to prove that they are not a national of any state. Of particular concern are the protection gaps faced by non-refugee stateless persons in detention - an issue which has to date received relatively little attention, as compared to the detention of refugees and asylum seekers.

When a stateless person is a refugee, he or she cannot be penalised for illegal entry or presence. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Legal Limbo of Detention
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.