42 FMR32 The legal limbo of Katherine Perks and Jarlath Clifford

Of the broad range of violations suffered by received relatively little attention, stateless people, that of the right to be free from arbitrary as compared to the detention of detention has received little attention. The extent and scale of and asylum seekers. the problem are not fully known. When a stateless person is a , he or she cannot be penalised for Physical restriction, including other non-citizens in administrative illegal entry or presence.4 Stateless prolonged or indefinite detention, detention, whilst their status is being persons who are not refugees do not of those who have no effective determined, or ‘pending removal’ enjoy such protection under the 1954 nationality is increasingly common under regulations. Convention Relating to the Status of around the world.1 Preliminary Stateless Persons and are therefore analysis of available research suggests Arbitrary detention potentially at greater risk of detention that practically all types of stateless While the for breach of immigration regulations. persons may be at risk of arbitrary of asylum seekers and irregular detention. Without the full set of migrants is not expressly prohibited Most legally stateless persons in rights available to citizens, stateless under , it can need of international protection are persons face a greater likelihood of amount to arbitrary detention if it not refugees and have no claim to discrimination in the administration is not absolutely necessary given asylum. In many countries, non- of justice, harassment and arbitrary the circumstances. UNHCR and refugee stateless persons who cannot detention. One common problem others have developed guidelines acquire a legal status are subject faced by stateless persons – as also on alternatives to detention.3 Even to removal from the country, and by IDPs – is a lack of documentation where detention is not initially may be detained pending removal. which can leave them more prohibited, it may become arbitrary A legally stateless person who is vulnerable to rights violations. over the course of time owing refused asylum or otherwise deemed to the length of detention. not qualified to remain lawfully, Very little information is available and who is detained or restricted on the plight of stateless persons in Furthermore, discussions concerning ‘pending deportation’, often cannot detention in their country of habitual the legality of detention of stateless be removed because a) they have residence; research suggests that persons, whether de jure or de facto, no state of nationality to which this is not only because by their must be guided by the fundamental they can be ‘removed’ and b) their nature stateless populations are often principle of equality. This does not country of habitual residence will ‘hidden’ but also because relatively necessarily require identical treatment not take them back. Thus, because little international attention has but rather different treatment removal is often impossible, what been paid to stateless populations. according to the needs and particular should be short-term detention It seems that human rights research circumstances of the individual. In in preparation for removal may rarely identifies statelessness as a order to fulfil this principle, a first become long-term or even indefinite, factor when reporting on individual step must be an appropriate status as officials try to convince another detainees in their country of determination procedure capable country to accept a stateless person. origin or habitual residence. of identifying stateless persons as In countries where there is no limit to a category of persons with unique detention, stateless persons can face A growing body of information protection needs. Although the issue a real risk of indefinite detention. suggests that stateless people who of prolonged or indefinite detention are migrants, refugees or asylum of de jure and de facto stateless One vivid illustration of this risk is seekers are extremely vulnerable to persons has reached the courts in the case of Ahmed Ali Al-Kateb, a arbitrary detention and other forms a number of countries, the issue of stateless Palestinian man who was of restriction, including immigration discrimination is rarely addressed. taken into administrative detention as detention and restriction in closed an unlawful non-citizen in Australia refugee and displaced persons camps. The situation of a stateless person in December 2000. With his claim The UN Working Group on Arbitrary differs fundamentally from that of to asylum rejected, no grounds to Detention has found that “a straight other non-citizens. For example, remain in Australia and no other analysis of the statistics indicates that legally stateless persons can be subject country willing to receive him, he in some countries the numbers of non- to lengthy detention while their remained in detention until April citizens in administrative detention status is being determined, owing 2003 when he was conditionally exceeds the number of sentenced to the delays inherent in attempting released by the Federal Court. In prisoners or detainees, who have or to prove that they are not a national 2004 the High Court of Australia held are suspected of having committed of any state. Of particular concern that it would not in fact have been a crime.”2 An unknown number are the protection gaps faced by unlawful to detain him indefinitely. of stateless persons are caught up non-refugee stateless persons in Following considerable pressure from in such practices and held with detention – an issue which has to date advocacy groups, in May 2005 the FMR32 STATELESSNESS 43

Australian government introduced One refused asylum seeker from Katherine Perks (katherine.perks@ a ‘Removal Pending Bridging Visa’ Algeria was held in immigration equalrightstrust.org) is Legal which applies to all detainees whom detention in the UK for 16 months. Researcher and Jarlath Clifford it is not reasonably practicable to At the end of his first five months in (jarlath.clifford@equalrightstrust. remove for the time being and who detention, the Algerian authorities org) is Legal Officer at The have cooperated fully with efforts notified the UK government that Equal Rights Trust (http://www. to remove them from Australia. attempts to establish his identity had equalrightstrust.org/). failed. Despite this, and although 1. UNHCR ‘Brief on Statelessness and Detention Issues’, De facto statelessness this person cooperated with efforts 27 November 1997 http://www.unhcr.org/refworld/ Individuals who are de facto stateless to facilitate his return to Algeria, he docid/4410638fc.html 2. Report of the Working Group on Arbitrary Detention, have no effective nationality and remained in detention for a further Annual Report 2007, http://www2.ohchr.org/english/ are without the protection of either 11 months and was released only issues/detention/index.htm the country where they are present when the High Court ruled that his 3. UNHCR ‘Alternatives to Detention of Asylum Seekers and Refugees’, April 2006. http://www.unhcr.org/ or their country of legal nationality. detention was unlawful because of its refworld/docid/4472e8b84.html De facto stateless persons can also length and the “complete uncertainty 4. 1951 Refugee Convention. find themselves in detention and about when it might be brought in the same kind of legal limbo. to an end by deporting him.” This situation may arise as a The Equal Rights Trust is documenting result of a number of practical, While there is a clear legal the detention and physical restriction humanitarian or legal circumstances, distinction between de jure and de of stateless persons around the world, such as where deportation would facto statelessness, in practice both and is developing a legal advocacy violate the principle of non- groups may be detained or restricted. strategy based on the universality refoulement; where the country UNHCR and others have expressed of human rights principles. The of origin refuses to issue identity the view that stateless persons should project will identify cases where documents or to cooperate in re- not be detained only because they stateless persons are detained or admitting their national, preventing are stateless. If there is no alternative otherwise restricted, due at least the completion of deportation to detention, its maximum length in part to their being stateless. The proceedings; where, as in the case should be specified, based on strict authors would welcome information of Somalia, there is no functioning and narrowly defined criteria. This concerning individual cases of state of origin; or where there is principle should now be translated stateless persons in detention. no safe means of transportation into clear international and national to the country of origin. legal standards and put into practice. Displaced Kosovo Roma and property rights Jose-Maria Arraiza and Linda Öhman

The lack of secure property rights heightens the risk of Right to be protected statelessness for displaced Kosovo Roma in Montenegro. An individual displaced from an informal settlement across the border Kosovo’s declaration of independence Roma living around the Montenegrin from a newly created state has certain on 17 February 2008 raised the capital, Podgorica, can neither rights under international law to question of statelessness for displaced prove legal residence in Kosovo nor protect their . As well persons originating from Kosovo. A meet the necessary requirements as the right to a nationality and the large number of Roma, Ashkali and to obtain Montenegrin citizenship prohibition against the deprivation of Egyptians displaced from Kosovo and thus may be stateless. nationality of individuals, particularly are presumed not to be registered as a result of discriminatory practices, as residents in Montenegro.1 Lack Prior to Kosovo’s armed conflict, the Council of Europe Convention on of personal documents, property many Roma families lived in mahalas Nationality3 of 1997 also considers records and registered land titles (neighbourhoods) in housing that the problematic issue of state exacerbates the problem and had been handed down to them for succession. In cases where a new increases the probability that they generations. The legal entitlements state is created, the decision on the will remain stateless. According to to these dwellings were never clear, granting or retention of nationality , 4,300 are for a number of reasons including should, according to the Convention, living in Montenegro in a “legal unregistered inheritance, illegal take into account a) a ‘genuine limbo”.2 In August 2008, UNHCR construction (which Yugoslav and effective’ link with the state, published a statement suggesting municipal authorities ignored) or, b) their habitual residence, c) their that some 46% of displaced Kosovo quite simply, lack of a formal address. wishes and d) their place of origin.