Facing a lifetime of uncertainty: Protecting stateless persons from arbitrary detention in the UK

Katia Bianchini, ENS researcher & Max Planck Institute for Religious Studies and Ethnic Diversity (Goettingen, Germany)
/ 4 mins read

There are no human rights in the United Kingdom”, said Yassin, a stateless Bidoon from Kuwait in his late twenties. He came to the UK in 2007 to seek asylum but his claim was refused. Later he contacted the Kuwaiti embassy only to find out that he cannot apply for citizenship. He has been in the UK on temporary admission for nine years. He is frustrated and without any faith in the system which he thinks is unjust and arbitrary. Like many other stateless people in the UK, he faces a lifetime of uncertainty and the continuous threat of being detained.

Stateless, unreturnable and detained in the United Kingdom

While the law provides that the only purpose for administrative detention is to examine someone’s immigration status or to facilitate removal or deportation, in the UK administrative detention has been increasingly relied upon to the point of becoming a central feature of immigration enforcement policy.

New research by the European Network on Statelessness published today reveals that immigration detention is imposed without addressing the vulnerabilities of the stateless and more generally without thorough inquiry about the prospect of return. This is due to both the absence of an adequate legislative framework and poor quality of decision-making.

First of all, although the Home Office policy states that detention must be used “sparingly” and for “the shortest period necessary”, the UK is the only EU country with no statutory time-limit on immigration detention. As a result, detention can last for months or even years, especially for individuals whose identity and nationality are difficult to establish. It is striking that two  interviewees from the report were detained for over three years, after which they were eventually released with no status. The length of detention is exacerbated by the fact that there is no protection against cycles of re-detention, which is something implied by the data. Cycles of detention may occur because stateless persons are often left without status and new circumstances, such as further attempts to identify and remove them, may justify their incarceration. Indeed, five of the ten stateless persons interviewed were detained more than once.

As far as decision-making is concerned, Home Office officials are too quick to assume the prospect of return, and often both the initial and ongoing decisions to detain do not engage in an adequate individual assessment. Persons whose citizenship status is more complex are more likely to be detained for disproportionately long periods, but even clear-cut cases of statelessness (one research participant is a Palestinian who was detained for two months and one is a Sharawi who underwent eight episodes of detention for a total period of over four years) may face risk of detention. This is especially concerning where the inability to return is not due to one’s lack of cooperation, but because of some embassies’ systematic refusal to facilitate the return of their nationals. Even though the UK’s authorities are aware of “difficult countries” (i.e. Eritrea, Ethiopia, Iran, Iraq, Afghanistan, Sudan, Somalia), persons originating from these countries continue to be detained. In these cases, administrative detention appears to have become punitive in nature and to act as a deterrent. One of the report’s interviewees confided, “I am very frustrated by the treatment I am receiving. I believe that the Home Office does not know how to handle cases like mine. It is total chaos. Clearly my removal is not imminent… I would go somewhere else if I could…

Imposing detention when it is already apparent that removal proceedings are likely to fail, violates domestic and international law, something highlighted in the ENS Toolkit for Practitioners.

Ending arbitrary detention

Even when released, few stateless persons receive a durable solution, and they are often left in limbo. Having said that, the recently introduced statelessness determination procedure represents an important step for the protection of the stateless, but as this report points out a number of issues must be addressed, including the stringent burden of proof on the applicant (whom must prove that his lack of nationality is more likely than not), the lengthy times to receive a decision (between one and two years), confusing and restricting provisions regarding who is excluded from the definition of stateless person and from leave to remain (international law provides a wider definition of stateless person than the UK Immigration Rules). Moreover, access to the procedures is too limited and there is no provision facilitating those in immigration detention and only very limited legal aid.

Having made several meaningful reforms already, the UK should now improve the legal framework and decision-making process to protect stateless persons from arbitrary detention and guarantee a durable solution. This report puts forward clear recommendations to the UK government on how to reform the statelessness determination procedure and use of detention in order to protect stateless individuals in the UK.

ENS alongside its UK members will continue to advocate for a change. ENS report “Protecting stateless persons from arbitrary detention in the United Kingdom” is now available online (full and summary).

ENS project “Protecting Stateless Persons from Arbitrary Detention” was possible thanks to the support of Oak Foundation. ENS also wishes to acknowledge the Institute on Statelessness and Inclusion as an expert partner for this project. Special thanks and acknowledgment are also owed to UNHCR and the Sigrid Rausing Trust for their core support of ENS's work. 

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