“Everyone has the right to a nationality”

Detention of a stateless refugee

12 September 2013 | Maxim Ferschtman is Senior Legal Adviser on equality and citizenship at the Open Society Justice Initiative

Stateless people have no country that accepts them as their own. Combine that with a situation of irregular stay, and one has a potentially perpetual risk of being put in immigration detention ‘with a view to expulsion’. Equal Rights Trust has addressed this issue extensively. In its ‘Guidelines to Protect Stateless Persons from Arbitrary Detention’ ERT underscored: “Most  immigration  detainees  are  nationals  of  another country. But some have no nationality; as stateless persons, they are entitled to protection under international treaties as well as under human rights law. In reality they are among the most vulnerable detainees.”

This blog will discuss the case of Amie and Others v. Bulgaria, in which the European Court of Human Rights (“The Court”) rendered judgment earlier this year. The Court addressees, albeit slightly matter-of-factly, the precarious situation of stateless persons in immigration detention.

The facts of the case

The applicants are Mahmud Abas Amie and Rowida Mustafa Kamah, husband and wife, and their children, Katia Mahmud Amie, Firas Mahmud Amie and Abas Mahmud Amie, who were born in 1970, 1971, 1991, 1993 and 2002, respectively. The first four are stateless persons, originating from Lebanon, and were granted refugee status in Bulgaria in 2001. The youngest child acquired Bulgarian nationality by being born in the country. In 2006, Mr Mahmud Abas Amie was placed in a detention facility following an order by the Bulgarian authorities for his expulsion on the grounds that he was involved in terrorist and other criminal activities and therefore represented a serious threat for national security. He was not subject to any criminal proceedings for his alleged criminal activities and was only at a later stage, when he challenged his detention, summarily informed of the suspicions against him. During the ensuing proceedings, Mr Amie was released after nearly three months, then arrested and placed in detention again from 2008 until 2010. He was released on 1 February 2010 following a decision of the Sofia Administrative Court which reviewed the detention on its own motion.

The Parties’ Positions

Mr Amie complained about the unlawfulness of his detention pending expulsion for a total period of more than one year and eight months (Article 5 § 1 ECHR - the right to liberty and security) without effective judicial review (Article 5 § 4 ECHR – the right to have lawfulness of detention decided speedily by a court). He pointed out that he could not have been expelled, or detained with a view to expulsion, as he was a recognized refugee and therefore should not have been taken into immigration detention. The Amie family further complained that the order for Mr Amie’s expulsion and its impending enforcement, as well as the his detention pending such enforcement, amounted to an unlawful and unjustified interference with the family’s right to respect for their family life under Article 8 ECHR.

Note: For the purposes of this blog only the aspect of immigration detention of Mr Amie as a refugee and stateless person will be discussed here. The Court’s considerations as to the impact on the Amie family’s right to family life are limited to the nature of proceedings brought against Mr Amie and do not go into the substance of what would happen to the family if Mr Amie were to be expelled, leaving his family behind in Bulgaria.

The Bulgarian Government maintained that Mr Amie’s detention had been lawful under its domestic law and had been imposed with a view to his expulsion. It also pointed that the issuing of the expulsion order had automatically stripped him of his refugee status. The Government also pointed out that Mr Amie’s detention had not been excessive in view of, among others, European Union Law on the matter. Moreover, the Bulgarian authorities had asked the Embassy of Lebanon to issue Mr Amie a travel document, which in spite of repeated requests, the Embassy had failed to do. At the same time, the first applicant had not identified a third country to which he could be removed. In other words, it could not be attributed to the Government that Mr. Amie had remained in detention for so long, but rather to himself and the Lebanese Embassy.

The Court’s Ruling

The Court recalled the main principles relating to deprivation of liberty in the context of immigration. It underlined that that the protection of the individual against arbitrary interference by the State with his or her right to liberty is a fundamental right. Liberty is the rule, detention is the exception.  One of the exceptions permitted is to control the liberty of aliens in the immigration context (contained in Article 5 § 1 subparagraph of EHCR). This provision states among others that the detention may only be carried out to prevent a person’s ‘effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’.

At the same time the Court underlined that immigration detention will only be justified for as long as deportation or extradition proceedings are in progress. Such proceedings must be exercised with due diligence and should not exceed that reasonably required for the concrete and realistic purpose pursued, namely deportation. The Court noted that Mr Amie had remained in detention pending the enforcement of the order for his expulsion for a total period of one year, eight months and twenty‑four days. It establishes that during that time the Bulgarian authorities only wrote four times to the Lebanese Embassy in Sofia, asking it to issue a travel document for Mr Amie, but had in no way expedited the proceedings The Court further noted that at the same time the Bulgarian government had also not made efforts to secure Mr. Amie’s admission to a third country.

Next – and here it becomes interesting -  the Court pointed out that it is “aware that, as noted by the United Nations High Commissioner for Refugees in his “Note on Expulsion of Refugees”, the enforcement of expulsion measures against refugees – the Court would add, especially ones who are stateless [emphasis added]– may involve considerable difficulty and even prove impossible because there is no readily available country to which they may be removed”. The Court then calls the Bulgarian authorities to account in noting that “if the authorities are – as they surely must have been in the present case – aware of those difficulties, they should consider whether removal is a realistic prospect, and accordingly whether detention with a view to removal is from the outset, or continues to be, justified. And so indeed, the Court concludes that the grounds for Mr Amie’s detention: action taken with a view to his deportation, did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence.

Conclusions/lessons

Notwithstanding specific circumstances of the case, in particular the aspect of alleged threat to national security emanating from Mr Amie - assertions the Court incidentally dismissed because of the non-transparency of the process, lack of an evidentiary basis for the grounds underlying the expulsion order and the fact that the court proceedings relating to the expulsion order were classified in their entirety - it is encouraging to see that the European Court is becoming increasingly sensitive to the plight of stateless people and their particular and precarious position.

It makes every possible sense to establish that a refugee cannot be expelled to his country of origin, even if his status is supposedly revoked. This is even more true when the person concerned is stateless which means that his (last) prosecuting country of origin should not be asked to take him back, while other countries with which he has not link whatsoever cannot be expected to accept him. This should be established in an assessment prior to any detention and at the very least very promptly by a court if the person has been detained (see also Guideline 22 of the aforementioned ERT Guidelines).

Taking and keeping a stateless person in immigration detention ‘with a view to expulsion’ has no realistic prospects of success and is therefore spurious. 

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Maxim Ferschtman is also a member of the ENS Steering Committee. You can find this blog on the new ENS Facebook page https://www.facebook.com/EuropeanNetworkOnStatelessness  Also see ENS's 2012/13 Annual Report

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