This blog was first published by Open Democracy in November 2016, We are re-posting it now to highlight the issues raised - which will be addressed at the forthcoming ENS conference ‘Protecting Stateless Persons from Arbitrary Detention’ in Budapest on 4-5 May 2017. You can find more information and register here – places are free but are filling up fast in advance of the 15 March deadline.
Peter has lived in the UK for a long time, over twenty years. Naturally, he considers this country as his home. But the government has failed to regularise his status or provide him with documentation that would safeguard his right to live, work and participate in society. Continuously denied citizenship and the right to work, he did everything he could to survive, including accepting badly paid jobs. The result? He was sent to prison, convicted of working illegally, made into a criminal simply for trying to support himself.
After serving his sentence, Peter was moved to an immigration detention centre. For nine long months the Home Office kept him locked up while they attempted to deport him to Nigeria. By now, labelled as a criminal, and worn down by all this time in prison, Peter agreed to be ‘voluntarily’ removed from the country he called home. However, the Nigerian authorities refused to accept that he was one of their nationals.
After his release was eventually ordered, Peter initially refused to leave the detention centre: he had nowhere to go, and viewed returning to Nigeria as his only option. Forced out of the detention centre and once again abandoned to homelessness, with no means of support, he was soon arrested and detained for another three months while the Home Office made further futile efforts to remove him.
Where is Peter now?
In limbo, still unable to convince the UK to provide him with a legal status, on the unreasonable grounds that he could apply for Nigerian nationality – an option he has tried and failed. Therefore, although, since April 2013 the UK has legislation in place that can determine whether someone is stateless or not, Peter continues to experience the country in which he has lived for over 20 years, as a no man’s land.
Peter is just one of several stateless persons interviewed for our recent report Protecting Persons from Arbitrary Detention in the United Kingdom, one of a series of six country reports produced through the ENS pan-regional project Protecting Stateless Persons from Arbitrary Detention which aims to highlight and galvanise concerted action on the issue.
Peter’s story highlights the contradictions, and failures, of laws that are well intentioned but fail so many other people like him, and which are not living up to expectations.
How does this happen? How is it, in a fair and modern country, that Peter’s impossible situation came about, and that after 20 years living in the UK it had not been recognised that he was a stateless person? Also, even though there was legislation in place designed specifically to determine his status, why was he prevented from doing so while he was in detention? To Peter, it must have felt that the system had been designed to block him at every turn.
Our report addresses these questions and assesses whether the new immigration rules on statelessness work as they were intended, and are capable of providing stateless persons with the protection owing to them under international law. Regrettably, in many respects, the answer is no.
The report corroborates several failings identified with the procedure. For example, it is clearly not fair that there is an unreasonable burden of proof on the applicant, who has to prove a ‘negative’ (often while destitute or detained). Also, why does it take up to two years for someone to receive a decision? To make matters worse, the definition in the regulations about who is excluded from being defined as a stateless person (and hence eligible for a residence permit) is unduly restrictive and runs contrary to international law. When you throw in the fact that applicants are denied free legal advice and an automatic right of appeal, it’s not surprising that so few stateless persons are able to benefit from the new procedure. That’s clearly not fair – even hardened criminals are provided with lawyers. Incredibly, the research reveals that as of April 2016 only 39 applications had been granted! (This represents approximately 5.2% of the 754 decided applications.)
There was a common complaint from people who had been held in detention, about the enormous difficulty of accessing the existing regulation in practice. Invariably officials had tailed to consider statelessness as part of the initial decision to detain. This suggests an unsafe disconnect regarding information that should be feeding into the decision-making process. Those officials with responsibility to decide on a person’s liberty clearly need to be better trained to recognize statelessness, and thus to be able to refer cases to the proper procedure.
Peter’s story is not unusual. Muhammed, a Sahrawi from Algeria, is another shocking example from the report of someone who was clearly stateless but still faced being locked up, suffering eight episodes of detention totalling four years, despite a doctor providing evidence that he was suffering from high blood pressure, cholesterol and asthma, and was wholly unsuited to detention. People whose citizenship status is more complex are even more likely to be locked up for disproportionately long periods. This is especially alarming where the inability to return is not due to their lack of cooperation but rather the refusal by another country to recognize their nationality or to provide them with documentation.
One of the worst mistakes by the Home Office is to attribute the wrong nationality to someone, as the inevitable consequence of this can be months or years of futile back and forth with the country in question. Anthony, for example, spent 14 months in detention before being released after the Zimbabwe government refused to accept him as a national. Earlier this year Anthony was detained once again, while the Home Offices insisted on making enquiries with Nigeria, a country with which he claims to have no connection. His situation has been made worse by being separated from his wife, who is a British national and whose mental health condition has been aggravated by their dreadful predicament. And so it continues, with Okeke, who was detained for four months. Almost unbelievably, the Home Office attempted to remove him from the UK even though they had classified him as being of ‘unknown nationality’. Extraordinarily, all this happened to a man who has spent his entire life in the UK.
To put people in detention, in preparation for removing them, when it is clear that removal proceedings are likely to fail, violates domestic and international law. Stateless migrants in this country find themselves particularly vulnerable, as the UK is the only EU country with no statutory time-limit on immigration detention. So why do it? Why detain people like Okeke when there is no chance of removing them? It is hard to avoid concluding that administrative detention is often intended as a punishment, as a deterrent. If so, this is wrong and a purposeful violation of the aim of the regulations.
If one carefully considers Peter’s story, or Muhammed, and certainly Okeke’s, they all suffered the same consequences following their release. They could not be removed, often found themselves homeless and unable to work, and condemned to an endless limbo, excluded from regularization (under the Immigration Rules on statelessness) due to having a criminal conviction. It didn’t matter if their ‘crimes’ were related to ‘subsistence’ (for example, petty theft), ‘administrative’ (‘working illegally’) or for using a false travel document (by definition many stateless persons lack authentic documentation); as in the eyes of the law, and society, they had all been criminalised.
What is to be done?
Home Office officials responsible for deciding applications to stay in the UK legally, as a stateless person, should be more sensitive, and generous in granting protection status to individuals with criminal convictions, many of which were the result of situations of blameless hardship, of being stateless and in limbo. These officials should adopt a more rights-respecting and inclusive approach when assessing who qualifies as a stateless person. The first priority should be to protect vulnerable people, not to further punish them; an approach which would be more consistent with both the letter and the spirit of international conventions such as the 1954 Statelessness Convention. There seems little rationale or justification in leaving a small number of would-be citizens on the margins of society, with no possibility of belonging but equally no prospect of establishing a life elsewhere.
But there is hope for those men and women who told their stories, as the UK does at least have in place a dedicated statelessness determination procedure (many countries in Europe do not have these regulations in place) even though it holds out promises that more often than not are illusory. Akram, a Palestinian from the West Bank, was one person who explained how he had managed to avail himself of protection under the Immigration Rules (despite having a criminal conviction for possessing a false document). Thankfully, he is now happily married and working as a baker, and is an optimistic example of how the law can work well if applied well. The challenge, now, is to fix the anomalies and weaknesses in the UK legislation that so often result in unfair detention or removal, and to keep to the spirit of the procedure that was designed to provide a solution for individuals who, through no fault of their own, find themselves stuck in a limbo of statelessness.