Guidelines to Protect Stateless Persons from Arbitrary Detention The Equal Rights Trust Guidelines to Protect Stateless Persons from Arbitrary Detention The Equal Rights Trust The Equal Rights Trust (ERT) is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. Established as an advocacy organisation, resource centre and think tank, ERT focuses on the complex and complementary relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. ©June 2012 The Equal Rights Trust Printed in the UK by Stroma Ltd DesignISBN: and layout: 978-0-9560717-6-7 Dafina Gueorguieva All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by other means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Centre, USA. The Equal Rights Trust 126 North End Road London W14 9PP United Kingdom Tel. +44 (0) 207 610 2786 Fax: +44 (0) 203 441 7436 www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England and a registered charity. Company number 5559173. Charity number 1113288. TABLE OF CONTENTS FOREWORD................................. 1 INTRODUCTION ............................ 3 EQUAL RIGHTS TRUST GUIDELINES TO PROTECT STATELESS PERSONS FROM ARBITRARY DETENTION ..................... 7 COMMENTARY TO THE GUIDELINES ......... 29 SELECTED ENDORSEMENTS ................ 155 1 FOREWORD These Guidelines address a gap in protection which af- fects the many stateless persons who are held in immi- gration detention. They aim to complement rules which have been developed to protect asylum seekers and refu- gees. They focus attention on the vulnerability of state- less persons within the larger population of detained ir- regular migrants. They see human rights as central to the protection of stateless persons. In the last decade, the use of immigration detention has greatly expanded. Detention of refugees, migrants and stateless persons has become a frequent – and fre- quently arbitrary and disproportionate – response to breaches of national immigration law. This is now a global phenomenon. Most immigration detainees are nationals of another country. But some have no nationality; as stateless per- sons, they are entitled to protection under international treaties as well as under human rights law. In reality they are among the most vulnerable detainees. The Guidelines apply general provisions of interna- tional human rights law to the special situation of those who have no effective nationality, and who are detained under national immigration laws. The inter- national legal framework which informs the Guidelines is set out in the Commentary. The Guidelines take as their starting point the principle that the human rights obligations of states in respect of stateless persons apply at all times, including in the exer- cise of immigration control. They draw a clear distinction Guidelines to Protect Stateless Persons from Arbitrary Detention 2012 The Equal Rights Trust 2 between stateless persons and irregular migrants, noting that while in principle neither group should be detained, their circumstances differ. They set out the steps which should be taken to protect stateless persons against ar- bitrary detention, and against discrimination and human rights abuse within detention. The Guidelines point to the need to identify stateless per- sons before a decision to detain is taken. Typically de- irregular migrants to their countries of nationality, and irregulartention is migrants seen as a who first possess step in athe nationality process of are returning in prin- ciple able to return to a country of nationality. But state- less persons have no country of nationality to which they can return, and so cannot be removed. The distinction canis important: be removed. early Where identification stateless personsprotects cannotthe stateless be re- moved,from being as the detained Guidelines on the note, flawed detention assumption for the that purpose they of removal is arbitrary, and in breach of international hu- man rights law. The Guidelines provide practical human rights guidance for all those who are involved in the detention process: in the decision to detain, in the administration of detention centres, and in the representation and support of state- less persons in detention. June 2012 Stefanie Grant Guidelines to Protect Stateless Persons from Arbitrary Detention 2012 The Equal Rights Trust 3 INTRODUCTION The Equal Rights Trust (ERT) has worked on the issue of statelessness since 2008. ERT has prioritised the issue because of the unequal treatment and acute discrimina- tion faced by stateless persons around the world. With no effective nationality, stateless persons are particularly vulnerable to discrimination and abuse. In July 2010, ERT published its report, Unravelling Anom- aly: Detention, Discrimination and the Protection Needs of Stateless Persons (Unravelling Anomaly).1 This report, which was based on research by ERT in nine countries, provided a critique and analysis of the protection status of stateless persons in the world today, with a particular focus on detention.2 In order to respond effectively to statelessness and pro- tect stateless persons, international human rights law requires states to (i) affirm the importance of nation- ality and promote everyone’s right to a nationality; and at the same time (ii) ensure that the lack of a na- tionality does not result in vulnerabil ity, exploitation and the violation of other human rights. The failure to rise to this challenge and afford adequate protection to vulner able persons results in statelessness and also heightens the cost and impact of statelessness.3 1 The Equal Rights Trust, Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons, 2010, available at: http://www. equalrightstrust.org/ertdocumentbank/UNRAVELLING%20ANOMALY%20 2small%20file.pdf. Australia, Bangladesh, Burma, Egypt, Kenya, Malaysia, Thailand, the UK and the USA. 3 See above, note 1. Page 27. Guidelines to Protect Stateless Persons from Arbitrary Detention 2012 The Equal Rights Trust 4 The detention of stateless persons throughout the world is a visible reminder that we have failed to protect state- less persons. Recommendation 11 of Unravelling Anom- aly called for the adoption of international standards on the detention of stateless persons. ERT has therefore drafted Guidelines to Protect State- less Persons from Arbitrary Detention (the Guidelines). The Guidelines provide detailed guidance on how states should treat stateless persons in the context of immigra- tion detention 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 Guidelines also recommend that states implement national statelessness determination procedures, and provide guidance on the relevant standards and protections. The Guidelines were drafted through a consultation pro- cess which sought to be comprehensive and inclusive: 1. A consultation draft and an accompanying commen- tary were published in Volume VII of the Equal Rights Review (ERR), in August 2011.4 2. In addition to the 7,000 plus recipients of the ERR, the Guidelines were sent to over 100 experts in the comple- detention, refugees and statelessness for their review andmentary comment. fields Additionally, of human rights, the Guidelines equality, were immigration, dissemi- nated through four specialist international refugee and 4 The Equal Rights Trust, Draft Guidelines on the Detention of Stateless Persons, 2011, available at: http://www.equalrightstrust.org/view-subdocument/index. htm?id=830. Guidelines to Protect Stateless Persons from Arbitrary Detention 2012 The Equal Rights Trust 5 detention networks, reaching more than 1,000 persons working close to the issue. 3. A second draft, which took into account comments re- ceived from experts including the UNHCR was prepared. 4. This draft was circulated amongst a smaller expert group, who participated in a Roundtable Discussion on 14 December 2011.5 5. - ised the Guidelines. Based on the discussion at the Roundtable, ERT final ERT would like to thank all who were involved in the drafting process and contributed to the development of the Guidelines. In particular, we would like to thank those who provided expert comment and participated in the Roundtable discussion. We would also like to thank all individuals and organisations that have endorsed the Guidelines, and that will do so in the future. The Commentary to the Guidelines is a complementary text which aims to assist the reader who would like to learn more about the substance, rationale and legal prin- ciple behind each guideline. It presents and analyses ex- isting human rights principles - international, regional and national law and jurisprudence - that provide the ba- sis for each guideline. Where the Guidelines practice, the Commentary elaborates on this. reflect good Court Chambers), Syd Bolton (Coram Children’s Legal Centre), Amal de Chickera 5 The experts who participated at the Roundtable were Adrian Berry (Garden (Asylum(ERT), Stefanie Aid), Paola Grant Uccellari (Senior Advisor(ERT)