In June 2018, the Court of Appeal will examine the relevance of a person’s likely statelessness to the decision to detain and maintain detention under immigration powers.
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 signatories 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%.
The UK’s continued lack of understanding regarding the rights and needs of stateless persons is most clearly 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 restricted to that purpose. Moreover, the period of detention must be reasonable in all the circumstances, and authorities must 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 that 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 detainees for their prolonged detention by not providing their true identity, along with accusations of non-compliance when a detainee refuses to undertake the fifth or sixth interview with the same state authorities that has already rejected them on multiple occasions. That the UK is only the country in Europe not to have introduced a time limit on immigration detention only compounds the problem further.
The UK’s failings can be demonstrated in our High Court case (which will be heard on appeal by the Court of Appeal in the summer), the misleadingly titled ML (Morocco) v SSHD  EWH 2177. This is one of the few UK-based cases challenging the legality of detention on the basis of the claimant’s statelessness. Our client, Mustafa*, is a Sahrawi, born in a refugee camp in Tindouf, Algeria, to parents from the region of Western Sahara. The refugee camp in Tindouf is on the border with Western Sahara and is run by the Polisario Front, the national liberation movement seeking to bring to an end to the Moroccan occupation of Western Sahara. Mustafa suffers from paranoid schizophrenia and, having failed to understand the asylum process upon arriving in the UK in 2003, spent several years homeless, fighting drug addiction and trying to survive.
After being arrested for a minor offence in 2013, he finally came back to the attention of the UK authorities and was detained in various immigration detention centres. 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 the fact that the UK government does 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 that this evidence provided as to Mustafa’s stateless, the UK persisted with a second application to the Western Saharan mission in 2015 after obtaining a document which suggested Mustafa’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 Mustafa’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 that it was not a recognised state. Instead, the Home Office saw it as new evidence enabling them to renew their efforts with the Mission in London.
Eventually, the Home Office relented in their attempts to remove Mustafa 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 is unaware of what countries the UK does or does not recognise would be comical were in not for the fact that this apparent lack of awareness results in detainees like Mustafa continuing to languish in detention with no prospect of removal. (More recent freedom of information responses from the Home Office confirm that they have never obtained an Emergency Travel Document (ETD) from Western Sahara and would never rely upon one even if issued by such claimed authorities.)
And yet the Home Office continued to press on with Mustafa’s removal, making doomed attempts to obtain an ETD from Morocco (and, as revealed on the day of his unlawful detention hearing, his place of birth Algeria). All the while, Mustafa was detained, struggling to cope with his ever-deteriorating mental health. His period of detention was beset with regular periods of self-harm and food refusal protests, and there were multiple occasions in which he attempted to hang himself. Mustafa was also regularly locked up (in isolation) in the segregation unit and placed on constant watch. The Home Office eventually gave up and released him. He had been detained for two years.
The resulting judgment by the Administrative Court in Mustafa’s unlawful detention, unfortunately, reveals the continuing misunderstanding of the relevance of statelessness on the decision to detain (and to maintain detention). The court dismissed the Judicial Review application, finding that the Home Office had at all times acted with ‘reasonable diligence and expedition’ to effect removal and Mustafa’s risk of absconding and re-offending increased the period reasonable to effect removal. Mustafa’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 an state which is not recognised, and to states that do not recognise Mustafa should justify this.
It is hoped that the Court of Appeal will understand and properly grapple with the question of statelessness in Mustafa’s appeal this summer. To be stateless is to be a citizen of nowhere; to have no country which is bound to accept their return; it is to be denied the basic comfort of somewhere to call home. The Home Office can never claim to have a reasonable prospect of removal in relation to a stateless person.
A heightened sense of urgency should always be present in the Home Office’s mind the moment the question of possible statelessness is raised by a detainee. Urgency however is an ‘alien’ concept to the Home Office; something Mustafa will always be regardless of what country he is in; unless that is, the UK finally give him the recognition he so desperately needs and deserves.
*This is not his real name. We have used a pseudonym to protect his identity.
This is an updated version of Lewis’s article that appeared in the European Network on Statelessness blog on 1 June 2017 - https://www.statelessness.eu/blog/lockedinlimbo-continued-detention-stateless-persons-uk