Public Law Solicitors

“The waiting is the worst part of detention. It’s like you don’t have any control any more, you just sit and wait. You wait for someone else to tell who you are and what is your country.” Farid, originally from Pakistan, based in Poland.

“The documents I do have tell me I’m of ‘unknown nationality’. Officially I still don’t exist.” Angela, an ethnic Armenian from Azerbaijan, based in the Netherlands.

The above quotes are just a couple of examples of the experiences documented by the European Network on Statelessness (ENS) in an important new report, "Protecting Stateless Persons from Arbitrary Detention: An Agenda for Change".

The report, launched this month, is a part of wider campaign, ‘Locked-in Limbo’, by ENS to canvass European governments to end the arbitrary detention of stateless persons and aim to build a consensus across Europe that the current use of immigration detention is unsustainable, harmful, and, in many cases, unlawful.

On 4-5 May 2017, myself and two colleagues (Nicholas Hughes and Alexander Schymyck) had the privilege of joining a delegation of over a hundred- lawyers, NGOs, international charities, campaign groups and other stakeholders for a conference held by ENS in Budapest for the launch of the report and to allow like-minded persons the platform to discuss their experiences of this issue within the respective countries and to discuss ideas on how to coordinate an end to the arbitrary detention of stateless persons.

To be stateless is to not be considered as a national by any State under the operation of its law. The unfortunate international norm across countries is that basic rights to live, work, access education and healthcare etc. are intrinsically linked to the concept of nationality. Thus, to be stateless is to not belong.

The UNHCR estimate that there are approximately 600,000 stateless persons in Europe (and 10 million world-wide). However, as ENS identify in their new report, while these numbers give an indication of the scale of statelessness in the region, data is sparse and often incomplete. As such statelessness remains, therefore, a “largely hidden phenomenon”.

The United Kingdom, like many of its European counterparts, has been slow-moving and complacent in its attempts to address the issue of statelessness. Despite being one of the original signatures to the 1954 Convention Relating to the Status of Stateless Persons, the UK only introduced a procedure to identify stateless persons, and consider them for leave to remain on this basis, in 2013. However, the recognition rate is worryingly low. As of 30 June 2016, a total of 1,662 applications were made to the Home Office. Of these, 854 received a decision with only 41 being granted leave to remain, just under 5%. If it were not for the invaluable work of the likes of Asylum Aid and the Liverpool Law Clinic, these figures would be even lower.

The reasons for this low rate vary, and include the government’s unwillingness to provide legal aid for these applications (albeit the LAA have been able to provide in some exceptional cases), a lack of understanding of the process (from applicants, lawyers and Home Office decision makers themselves) and an inability of persons to prove a negative (in cases where the Home Office believe a person is a national of a country but the person cannot prove otherwise). But the most concerning reason for many refusals is that simply to be recognised as stateless under the 1954 Convention is not enough to be granted leave to remain. The UK have introduced additional hurdles, including meeting the general grounds of refusal contained in the Immigration Rules, and the bizarre need to show they have provided all reasonably available evidence to enable the Home Office to determine whether they are stateless (as a separate requirement to showing you are recognised by the Home Office as stateless under the 1954 Convention).

The UK’s continued lack of understanding regarding the rights and needs of stateless persons is most obviously seen in the continued practice of detaining such persons under immigration powers. The purpose of immigration detention in the UK is to effect removal, and the UK’s powers to detain are curbed by the requirement to show that detention is only used for that purpose, that the period of detention is reasonable in all the circumstances, and that they act with reasonable diligence and expedition to effect removal. However, the reality remains that stateless persons are simply not removable as there is no country that will receive them, and as such immigration detention will always be arbitrary.

Unfortunately it is often their statelessness, and the UK’s reluctance to accept this fact, that results in such persons being detained for an even longer period of time. The Home Office will spend several months, even years, justifying detention on the basis they are acting with ‘reasonable diligence and expedition’ by going from country to country lining up travel document interviews from embassies and high commissions that simply will never recognise the person. This is invariably followed by blaming the detainees for their prolonged detention by not providing their true identity, and accusations of non-compliance when a detainee refuses to undertake the fifth or sixth interview with the same high commission that has already rejected them on multiple occasions. The UK’s failings can be demonstrated by our case last year, the misleadingly titled ML (Morocco) v SSHD [2016] EWH 2177, one of the few UK-based cases that have sought to argue detention was unlawful on the basis of the juridical relevant fact of the claimant’s statelessness. Our client, a Sahrawi, was born in a refugee camp in Tindouf, Algeria, to parents from the region of Western Sahara. Following a sentence for criminal damage and affray in 2013, he was detained in various IRCs under immigration detention. His health records from the outset noted his history of mental health illness, most notably schizophrenia.

In early 2014, the Home Office made an attempt to obtain a travel document from the Western Sahara Mission in London, notwithstanding that the UK government do not recognise Western Sahara as a country and despite overwhelming evidence that this Mission in London had never issued a travel document. Unsurprisingly, the application for a travel document was refused.

Undeterred by these facts, the earlier rejection, and despite the clear implication this evidence provided as to our client’s stateless, the UK persisted with a second application to the Western Saharan mission in 2015 after obtaining a document which suggested our client’s father had been born in Western Sahara, a fact not in dispute. That the document was from the UN Mission for the Referendum in Western Sahara (MINURSO) inviting the client’s father to vote on the possibility of independence for Western Sahara was still apparently not enough to alert the Home Office to the fact it was not a recognised state. Instead they saw it as new evidence to renew their efforts with the Mission in London.
Eventually, the Home Office relented in their attempts to remove our client to Western Sahara after it was pointed out by the Foreign Common Wealth office that Western Sahara is not a state recognised by the UK. That the body of government responsible for removing foreign nationals are unaware of what countries the UK do or do not recognise would be comical were in not for the fact it results in detainees like our client continuing to languish in detention with no prospect of removal.

Yet the Home Office continued to press on with our client’s removal, setting up doomed attempts to obtain an Emergency Travel Document (ETD) from Morocco (and as revealed on the day of our client’s unlawful detention hearing, Algeria – his place of birth).

The resulting judgment by the Administrative Court in our client’s unlawful detention, unfortunately, reveals the continuing misunderstanding of the relevance of statelessness on the decision to detain (and maintain detention). The court dismissed the Judicial Review application, finding that the Home Office at all times acted with ‘reasonable diligence and expedition’ to effect removal and that our client’s risk of absconding and re-offending increased the period reasonable to effect removal. Our client’s statelessness was given very limited consideration by the court, failing to focus on the fact that he was at no point removable and that this should have been recognised by the Home Office at a much earlier stage, if not from the outset. No amount of hopeless applications to a country not recognised, and to countries that do not recognise our client, should justify this. It is hoped that the Court of Appeal will view this important point of principle in a different light (permission to appeal remains outstanding). For the time-being our client has been released from detention, and the UK are no closer to obtaining the travel document they assert they can obtain to effect his removal.

ENS’s important new report and campaign are vital tools to continue raising awareness to European nations on the importance of protecting stateless persons from arbitrary detention. Their calls for greater understanding and identification of statelessness alongside proposals for the increased use of alternatives to detention should be applauded, and to have the opportunity to listen to ENS and other stakeholders share their experience and ideas at their recent conference was inspiring. Our firm echoes ENS’s advocacy to end the detention of stateless persons and will continue to challenge the UK government in this respect.

Lewis Kett, the author, is a Solicitor in the Public Law team. He regularly deals with challenging unlawful decisions of the UK government, with a particular interest in refugee law and immigration detention. In April 2016, he was the first trainee solicitor to be named the Times ‘Lawyer of the Week’ for his work in obtaining refugee status for a former Afghan interpreter who the UK had attempted to remove to Afghanistan.