Magazine article Forced Migration Review

The Legal Limbo of Detention

Magazine article Forced Migration Review

The Legal Limbo of Detention

Article excerpt

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. …

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