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Protecting Stateless Persons from Arbitrary Detention

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Statelessness and arbitrary (immigration) detention have been important areas of focus of my work since I took up the position of Council of Europe Commissioner for Human Rights in 2012. Across Europe, including in many of the countries discussed in the report, I have urged authorities to take action to prevent statelessness and ensure that people are not faced with further violations of their rights simply because they lack an effective nationality.

I have repeatedly stressed that detention should not be used as a tool to implement states’ overall migration policies. Immigration detention has severe and long-lasting effects on the mental health of persons detained. This is even more likely to be the case for stateless persons, for whom the prospects of being expelled are usually minimal, meaning they are faced with prolonged detention and uncertainty.

Reducing and eventually abolishing immigration detention requires states to invest systematically and proactively in alternatives to detention. The individual stories presented in this report fittingly highlight the enormous difference access to such alternatives would have on stateless men, women and children.

The hardship faced by adults in detention is experienced even more acutely by children. States should urgently end the immigration detention of children, including stateless children. Under the UN Convention of the Rights of the Child, states are required to take the best interest of the child as a primary consideration in their actions affecting children. As the Committee on the Rights of the Child rightly noted, the detention of a child because of their or their parents’ migration status is never in the best interest of the child, and should be expeditiously and completely ceased.

Of particular note in the report is the lack of social assistance that unreturnable persons – which stateless persons frequently are – face in different European countries. They are often left in a legal limbo and excluded from access to basic services, including health care services, leaving them destitute and often in poor health. States may see this as a way to incentivize them to leave, but it is an ineffective and harmful policy. The European Committee of Social Rights has made it very clear that states violate their obligations under the European Social Charter if they use deprivation from basic services as a weapon to enforce returns. The report rightly focuses on this issue as one of the particular problems faced by stateless persons.

Of course, key to protecting stateless persons against arbitrary detention, destitution and other rights violations is ending statelessness. It is important that states make sure they can effectively identify statelessness and ensure that appropriate procedures to acquire nationality are in place. In particular, states should focus on protecting the right of children to a nationality, to ensure that the problem does not persist.

One of the main factors feeding the perpetuation of statelessness, and the vulnerability of stateless persons to arbitrary detention, is the lack of visibility of the problem and a lack of awareness of its underlying causes. The European Network on Statelessness has worked tirelessly to overcome this, and the current report is another example of the invaluable work of the Network. Furthermore, it has shown to states that statelessness is not a problem that is ‘too complex’ to tackle effectively. With political will, many steps can be taken to avoid arbitrary detention, and to prevent statelessness more generally. I therefore emphatically support the report’s recommendations and urge states to take them to heart and to act upon them swiftly.