Strengthening the Protection of Stateless Persons from Arbitrary Detention in Immigration Control Proceedings

Kim v. Russia

In: European Journal of Migration and Law

There is a growing movement (globally and in Europe) addressing statelessness, and the July 2014 decision of Kim v Russia illustrates the role of the Strasbourg Court as a guardian of one of the most important fundamental rights of the ‘legally invisible’ in Europe. The court held that Russia’s two-year detention of a stateless person with a view to expulsion violated his right to liberty and security under Article 5(1) of the European Convention of Human Rights. This comment argues that Kim v Russia represents an important step forward by the Strasbourg Court in safeguarding the stateless person’s right to liberty and security of person under echr doctrine, by highlighting and addressing the special vulnerability of stateless persons to prolonged, indefinite and cyclical detention in immigration control proceedings, although the court should have gone further and indicated general measures explicitly recommending for Russia to introduce statelessness determination procedures.

  • 5

    H. Arendt (1951) The Origins of Totalitarianism New York ny: Schocken Books p. 294.

  • 11

    United Nations Human Rights Committee (2014) General Comment 35 – Article 9: Liberty and Security of Personccpr/c/gc/35 para. 3.

  • 49

    C. Ferschtman (2013) ‘Detention of a Stateless Refugee’ European Network on Statelessness 12 September available online at http://www.statelessness.eu/blog/detention-stateless-refugee.

  • 55

    Weissbrodt and Collinssupra note 52 p. 267.

  • 57

    Weissbrodt and Collinssupra note 52 pp. 267–268. This risk is best demonstrated by the Australian case of Al-Kateb v. Godwin [2004] hca 37 where a stateless Palestinian man was detained in December for unlawful entry under Australia’s Migration Act 1958 and with no country willing to receive him remained in detention until April 2003; regrettably the High Court of Australia held in 2004 that such indefinite detention of stateless persons was lawful so long as the removal remained a ‘practical possibility’. Ibid. para. 14.

  • 65

    Equal Rights Trust (2012)Unravelling Anomaly: Detention Discrimination and the Protection Needs of Stateless Persons p. 235 available online at http://www.equalrightstrust.org/ertdocumentbank/UNRAVELLING%20ANOMALY%20small%20file.pdf.

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  • 68

    Equal Rights Trust (2012)supra note 65 p. 235.

  • 91

    Perks and Cliffordsupra note 67 p. 42.

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