16 November 2017

SRSG Mig/Ref (2017)1

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Opinion on the Montenegro draft law on foreigners

Prepared by the Special Representative of the Secretary General on migration and refugees

on the basis of comments by

Susie Alegre,

Elspeth Guild,

Katja Swider

This document has been produced using funds of a Joint Programme between the European Union and the Council of Europe. The views expressed herein can in no way be taken to reflect the official opinion of the European Union or the Council of Europe and do not necessarily represent the views of any organisations the experts are affiliated with.

http://horizontal-facility-eu.coe.int

Table of Contents

I.      Introduction. 4

II.     Preliminary remarks. 4

III.    Compliance with Council of Europe human-rights standards. 5

a.    Access to territory. 6

b.    Expulsion. 7

c.    Deprivation of liberty and restrictions on freedom of movement 11

d.    Private and family life. 14

e.    Vulnerable groups. 15

f.     Procedural guarantees. 17

IV.    Analysis of provisions on statelessness. 18

a.    Access to the procedure to determine statelessness status. 19

b.    Content of the statelessness determination procedure. 20

c.    Status of persons recognised as stateless. 23

V.     Conclusions and recommendations. 25

      I.        Introduction

1.         On 3 August 2017 the Ministry of Interior of Montenegro requested the Council of Europe to provide an expert opinion on the draft Law on foreigners (“draft law”) as to its compliance with Council of Europe values and standards, particularly with respect to migration.

2.         The Special Representative of the Secretary General on migration and refugees invited Ms Elspeth Guild, Ms Susie Alegre and Ms Katja Swider to deliver their comments on the draft law.[1] Their comments formed the basis of this opinion.

3.         The present opinion is based on the English translation of the draft law, provided by the Ministry of Foreign Affairs of Montenegro through the Council of Europe Field Office in Podgorica. The translation may not accurately reflect the original version on all points. Some of the issues raised in this opinion may therefore find their cause in the translation rather than in the substance of the provisions concerned.

4.         The Special Representative of the Secretary General remains at the disposal of the Montenegrin authorities should they require further assistance.

    II.        Preliminary remarks

5.         Montenegro became an independent state in May 2006, seceding from the former Union of Serbia and Montenegro. It has been a member State of the Council of Europe since May 2007 and is a candidate state for membership of the European Union and a candidate for NATO membership. The draft law is to replace the current decree on the proclamation of the foreigners law from 24 December 2014 (number 01-1253/2).

6.          The provisions of the European Convention on Human Rights (“ECHR”) and its case‑law are of particular importance, along with other treaties which Montenegro has ratified and broader standards and recommendations of the Council of Europe and the UNHCR in the field of migration. Montenegro has signed and ratified the ECHR and its Protocols.[2] It has also signed and ratified, among others, the Revised European Social Charter, the European Convention for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and its Additional Protocol, the Convention on Action against Trafficking in Human Beings and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

7.         The scope of the draft law is essentially migration; aside from a few references to persons entitled to international protection, the draft law does not contain any provisions on asylum. The legislation on asylum has not been provided as part of this review process. Chapter I of the draft law provides for certain general definitions; the following chapters refer, respectively, to access to territory, visas, residence rights (including statelessness determination procedure and right to work), illegal residence and expulsion (including immigration detention), documentation, special provisions for EU nationals and for third‑country nationals, control and penalties.

8.         Section III of the present opinion addresses the compliance of the draft law with Council of Europe standards on human rights in the migration context, with a focus on the most important aspects of access to territory, expulsion, deprivation of liberty, protection of vulnerable groups and procedural guarantees. Section IV analyses the provisions on statelessness, by reference to international standards and good practices in other states. A final section summarises the conclusions and recommendations.

9.         The European Court of Human Rights has stated that “the principle of legal certainty […] is implicit in the Convention and is one of the fundamental elements of a State governed by the rule of law”.[3] The objective of legal certainty is to ensure that the application of law is not arbitrary.[4] Individuals who are affected by the law should be able to understand the provisions so that they can regulate their behaviour accordingly.[5] As it stands at the moment, the provisions of the draft law do not always enable this standard to be met. This opinion points out where the text lacks clarity or refers to other laws in an abstract way, or where there are inconsistencies in terminology. 

10.        For the legislative framework to be considered “in accordance with the law” both the primary and secondary legislation should be taken together. The draft law is primary legislation and its Article 216 refers to the need to pass secondary implementing legislation within six months of the date of entry into force of the law. It allows for the existing secondary legislation to remain in force in the interim unless contrary to this law. The existing and draft secondary legislation has not been provided as part of this review process. In any event, the draft law should make it clear where secondary legislation will be needed or will be applicable for the enforcement of particular provisions. In the current draft it is unclear whether, for example, there is or will be secondary legislation to govern the procedural aspects of decision-making in the draft law.

   III.        Compliance with Council of Europe human-rights standards

11.      In general, the European Court of Human Rights accepts that the principle of national sovereignty allows states to admit or exclude aliens from their territory.^[6] It is only in certain circumstances that exclusion from the territory or refusal of international protection would breach particular provisions of the ECHR and thus oblige states to admit aliens.

12.      Non-nationals on the territory or otherwise under the jurisdiction of a state party will enjoy the protection of the rights of the ECHR, and nationals of other contracting parties, and in some cases all migrants, may fall under the scope of the provisions of the European Social Charter. The right to freedom of movement is guaranteed under Article 2 of Protocol No. 4 to the ECHR, which states in its second paragraph that “everyone shall be free to leave any country, including his own”. Article 18.4 of the Revised European Social Charter guarantees the right of nationals to leave their own country in order “to engage in a gainful occupation in the territories of the other Parties”. However, neither the ECHR nor the European Social Charter guarantees the right of a non‑national to enter or remain in the territory of a member State, nor do they guarantee the right of asylum. 

a.    Access to territory

13.          Article 8 (“Entry Ban”)[7] of the draft law allows for a decision preventing entry to the country to be made by the police based on a list of grounds “without hearing the foreign national concerned”. It would be advisable for the draft law to provide explicitly that the decision needs to provide reasons and be communicated to the individual concerned in writing. A procedure enabling the person concerned to be heard would also be a welcome procedural safeguard.[8]

14.          Article 9 of the draft law defines “illegal entry” as, among other things, an entry before the expiration of the entry ban. However, Article 8 of the draft law does not contain any provisions in respect of the length of imposed entry bans. To meet the requirements of “foreseeability” the draft law should contain clear provisions in this respect.  For the same reasons, the draft law may need to provide more details on transit visas (B-type), which are currently lacking (while there are detailed provisions for other types of visa).[9]

15.          Turning away an individual at the border or elsewhere within a state’s jurisdiction and thereby putting the individual at risk to life or of torture or inhuman or degrading treatment or punishment is prohibited by Articles 2 and 3 of the ECHR. For this reason, the draft law could helpfully put in place an obligation on the police to assess whether the denial of entry exposes the individual to any risk to life or of ill-treatment prohibited by Articles 2 and 3 of the ECHR and to provide, as required by Article 13 of the ECHR, for the automatic suspensive effect of appeals in such cases.[10]  

16.          In respect of decisions relying on grounds of national and/or internal security, it is important to note that the executive cannot have an uncontrolled discretion and cannot stretch the notion of national security beyond its natural meaning or use this ground without further explanation or scrutiny.[11] Appeals against such decisions should be examined in some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The independent authority must be able to react in cases where invoking “national security” has no reasonable basis in the facts or reveals an interpretation of the concept which is unlawful or contrary to common sense and arbitrary.[12] For this reason, it may be necessary for the draft law to provide for a different procedure and for an authority other than the Ministry to examine appeals related to denial of entry and claims of risk of ill-treatment.

17.          Article 10 para. 6 of the draft law states that a stay in the transit area of an airport or within the anchorage area of a port or quay is not an entry into Montenegro. This provision, however, does not prevent the application of the ECHR to the individuals concerned since they will be within Montenegro’s jurisdiction.[13] 

18.          Article 10 para. 4 of the draft law seems to enable admission of persons seeking international protection.[14] Articles 28 and 53 of the draft law appear to imply the same by providing exceptions from general conditions for issuing, respectively, visas and temporary residence permits for humanitarian reasons. It would be advisable to make the exceptions more explicit in terms of who may benefit from them and to add under Article 8 of the draft law a reference to these exceptions.

19.          Article 53 of the draft law, referring to temporary residence permits for humanitarian reasons, lists as beneficiaries of such permits three categories of persons: victims of trafficking and domestic or community violence, unaccompanied minors (victim or not of trafficking and exploitation) and other persons for “particularly justified humanitarian reasons”. The draft law refers to “humanitarian reasons” in many other provisions. It would be advisable to provide more guidance as to what the draft law means by “humanitarian reasons”.

b.    Expulsion

20.          The provisions on return and expulsion are included under chapter VI of the draft law, headed “Illegal residence”. For the purpose of the draft law, illegal residence is any stay where an individual does not fulfil stay and entry requirements. The European Commission against Racism and Intolerance has recommended that member States of the Council of Europe avoid the language of criminalisation in relation to migration.[15]

21.          Article 106 of the draft law provides for a general obligation on private individuals and entities to inform authorities about foreigners in irregular situations. The European Commission against Racism and Intolerance has encouraged member States of the Council of Europe to ensure that no public or private bodies providing services in the fields of education, health care, housing, social security and assistance, labour protection and justice are under reporting duties for immigration control and enforcement purposes.[16] The current provisions of the draft law would have a “chilling effect” on foreigners which would prevent them from accessing such services. It is therefore recommended that this provision of the draft law be deleted.

22.          Pursuant to Article 107 of the draft law, illegal residence automatically leads to a return decision. However, return decisions are excluded in a list of specified cases where, instead, a forced removal will be carried out. This applies to a wide range of grounds including minor criminal convictions, “illegal” border crossing[17] and the particularly opaque ground of a security measure or expulsion from the territory of Montenegro as a protective measure. It is not clear what procedural safeguards precede forced removals under Article 107; a reasoned, written decision should be provided before any forced removal from the territory.

If an individual does not comply with the return decision, an expulsion procedure (i.e. forced removal) under Articles 111 and 115 is initiated after the expiry of the deadline for departure. Article 111 also permits the police to resort immediately to expulsion in ten situations, namely irregular border crossing, violation of regulations on employment of foreign nationals, assisting irregular entry, transit or stay; marriage of convenience; prevention of violence at sporting events (public order, arms and narcotic abuse); evading tax liabilities; commission of a crime ex officio; subject of a judgment for a serious crime in another country; repeated misdemeanours; or a single misdemeanour involving violence.

23.          The grounds for return and expulsion are very wide and, in order to meet the standards of foreseeability, should be refined (for example, to clarify if a judgment is necessary to find that a person has engaged in illegal entry and stay or has committed violence at sporting events).

24.          The draft law sets out in Article 117 reasons for prohibiting forced removal and expulsion (non-refoulement) in case of risk to life, ill-treatment, or the death penalty. The same article seems to indicate that only children would be protected from forced removal and expulsion where it would amount to a breach of the ECHR or of the UN Convention on the rights of the child. The draft law should clarify that the authorities must assess in respect of all individuals whether their expulsion would expose them to violations of their rights under the ECHR, including under Articles 2, 3, 5, 6 and 8, in which case such expulsion should be prohibited. As regards Article 8 of the Convention, it would be helpful to include a non‑exhaustive list of relevant factors and to make reference to the balancing exercise to be carried out when assessing the compatibility of a proposed expulsion with respect for private or family life.[18]

25.          Pursuant to Article 117 of the draft law, the forced removal of unaccompanied minors to a country where there is a member of their family, a guardian or an institution in charge of child reception does not explicitly require that the best interests of the child should be taken into account. This provision needs to be amended to make it clear what procedures apply and that, in relation to children, their best interests should be given due weight in the process.[19]

26.          In addition, the current text does not explain how an assessment of non‑refoulement grounds would work in practice. It also does not explain what Article 121 of the draft law means by special care or protection when applying return decisions in respect of certain vulnerable categories. Furthermore, it is hard to discern the link which should exist between expulsion decisions (Articles 107, 111, 115), non‑refoulement grounds (Article 117) and the special protection provisions (Article 121).

For this reason, it is highly recommended that the draft law make explicit the link between these aspects and incorporate a requirement for the authorities to reflect in their decisions an assessment of grounds preventing forced removal and expulsion, and of the vulnerability of individuals concerned. Failure to provide reasons could prevent an individual from challenging the decision effectively, raising issues under Article 13 of the ECHR.

27.          The appeal procedures contained in Article 108 of the draft law are unclear. Montenegro is bound by Protocol No. 7 to the ECHR which prohibits expulsion except in accordance with law. As mentioned above, for the purposes of the ECHR, “in accordance with law” means in accordance with a law which is sufficiently precise and detailed that the individual is able to understand the nature of the obligation. Further the foreign national must have an opportunity to submit reasons against expulsion which presupposes that he or she has received detailed grounds for the decision (in writing).

 

28.          Articles 108 and 111 appear to exclude the suspensive effect of an appeal against a decision of return and of expulsion respectively. This is not consistent with Article 13 of the ECHR if there are arguable complaints under Article 2 and 3 of the ECHR,[20] or with Article 1 Protocol No. 7 to the ECHR which allows appeals without suspensive effect only where expulsion is necessary in the interests of public order or for reasons of national security.

29.          The administrative appeal referred to in Article 108 of the draft law may not meet the requirements of independence necessary for an effective remedy, within the meaning of Article 13 of the ECHR. The wording indicates that it will be the Ministry which will take the decision on an administrative appeal, even though the initial decision was taken by a subdivision of the Ministry.[21]

30.          Article 114 of the draft law refers to legal aid in proceedings before the administrative court in relation to an expulsion decision, although there do not appear to be any provisions in the draft law concerning the right to appeal to an administrative court (the appeal provisions concern only appeals before the Ministry), except for detention decisions (Articles 128 and 129 of the draft law). It would be advisable for the draft law to clarify the remedies available in respect of forced return and expulsion.

31.          In this respect, it is noted that Article 114 of the draft law leaves the decision on whether to grant free legal assistance to challenge a decision of the police or of the Ministry to be taken by the police or by the Ministry. This does not appear appropriate, particularly since the draft law states that the police themselves will be paying for the free legal assistance. In these circumstances, neither the police nor the Ministry could be considered to be objectively impartial. In addition, the draft law entitles a person to free legal assistance based on his or her limited resources and an assessment that his or her claim is not ill‑founded. There is no information as to how this assessment is conducted or what the required threshold is. Further, the possibility to reject a request for legal assistance based on an assessment that the claim is ill-founded defeats the purpose of the legal assistance. It is strongly recommended that this draft law or secondary law provide for a clear framework with sufficient effective guarantees for free legal assistance.

32.          Article 108 of the draft law indicates that an appeal (to the Ministry) must be lodged within three days and that the decision on the appeal will be taken within eight days. Three days may not be a reasonable period within which to expect a foreign national to find legal representation and assistance to complete the formalities to lodge his or her appeal, and eight days for a decision to be taken on the appeal may also be unreasonably short and raise concerns about the thoroughness of the examination of the appeal.[22]

33.          Article 116 of the draft law allows for forced removal on a number of grounds, including violation of the draft law, where there is a suspicion that a person has committed or is planning to commit a serious crime, and where an expulsion decision has been made against a person in an EU Member State. The wording of these grounds is very wide and it is unclear what procedures are in place to challenge a decision based on an EU expulsion decision. It would be advisable to clarify this provision and to provide appropriate procedural safeguards as required by Articles 2, 3, 8 and 13 of the ECHR in particular.[23]

34.          Separate provisions appear in Article 175 of the draft law for the expulsion of EU/EEA/Swiss nationals and their family members which cover the EU grounds of public policy, public security and public health. They refer back to Article 107 and 111 of the draft law, in respect of which comments have been already provided. Article 177 of the draft law refers to entry bans for EU nationals and their family members. These provisions seek to bring greater convergence of Montenegrin law on foreign nationals with EU law on free movement of EU citizens. However, the rules are unnecessarily complex compared to EU free movement rules. It is recommended that these provisions be reviewed in order to clarify the different treatment applicable to this group, and to provide for the appropriate procedural safeguards.

c.    Deprivation of liberty and restrictions on freedom of movement

35.          The draft law refers in Articles 11 and 126 to restrictions or a ban on freedom of movement. Article 11 of the draft law allows for restrictions or the prohibition of movement on grounds of national and/or internal security or public health reasons, “according to law”. The draft law does not provide any other reference to this measure and does not regulate the procedure for applying it or the remedies against it. It is not clear if these missing elements are to be found in another specific law (hence the reference to “according to the law”). If so, the relevant law should be referenced directly in the draft law and would, itself, need to be sufficiently clear to meet the requirement of legality. If this is not the case, then the provision needs to be amended to make clear what the procedural framework and the basis of any restrictions under this provision would be. 

36.          In addition, although it appears that Article 11 of the draft law refers to freedom of movement within the meaning of Article 2 of Protocol No. 4 to the ECHR, the difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.[24] For this reason, should the degree and intensity of the restriction amount to a deprivation of liberty within the meaning of Article 5 of the ECHR, the draft law would need to envisage the special procedural safeguards required by that Article.

37.          In the context of freedom of movement, it is noted that under the draft law foreign nationals who hold permanent residence are not provided with free access to the entire territory of Montenegro, being obliged to register any stay over three days in another part of the country than their place of residence (Article 97 of the draft law). It is not evident from the draft law what sanctions foreigners may incur if they fail to register their stay (for example, if this makes their stay illegal). It is also not clear if the authorities may refuse registration for any reason and if so, what remedies are available in respect of such refusal. It would be advisable to clarify the procedure and effects of stay registration. For this purpose, the draft law needs to make sure any interference pursues one or more of the legitimate aims set out in paragraph 3 of Article 2 of Protocol No. 4 to the ECHR and is “necessary in a democratic society” or, where it applies to particular areas only, is “justified by the public interest in a democratic society” as established in paragraph 4, bearing in mind that cumbersome procedures may result in a violation of the right to liberty of movement.[25]

38.          Article 126 of the draft law “Restrictions on liberty for the purpose of expulsions” appears in fact to regulate deprivation of liberty, within the meaning of Article 5 of the ECHR, for 24 hours to ensure presence and for a maximum of 48 hours for the purpose of expulsion or forced removal. The text imposes a duty to provide reasons though not specifically in writing; an express provision to this effect should be inserted in the text. The draft law does not provide for any other procedural safeguards, in terms of remedies against such decisions. The draft law should be amended to ensure compliance with Article 5 § 4 of the ECHR, which requires that detainees have the opportunity to have the lawfulness of their detention reviewed speedily by a court with the power to order release.

39.          Article 127 of the draft law “Placement in reception facilities” refers in its text to restrictions on freedom of movement. However, it appears that it actually envisages detention. The provisions limiting detention to cases when there is a risk of absconding or where the individual concerned makes forced removal difficult are to be welcomed, although further detail on how the circumstances which justify an assumption that there is a risk of absconding are to be assessed would be useful. The draft law could clarify that a comprehensive assessment of all personal circumstances should be carried out, with no single factor being necessarily sufficient in itself to justify detention. In so far as Article 127 appears to permit detention of those whose removal is not possible,[26] this is not compatible with Article 5 § 1 (f): the case-law makes it clear that detention will be justified under this ground only where, and for as long as, deportation proceedings are in progress.[27]

40.          The maximum initial duration of such detention is six months. Detention may be extended for another twelve months when the individual concerned does not cooperate or when travel documents have to be issued by another country. The decision ordering and extending detention is taken by the police; both may be appealed to the administrative court within five days (Articles 128 and 129 of the draft law). Although it seems that the draft law seeks to harmonise its provisions with the EU’s Returns Directive 2008/115, it lacks the safeguards in Article 15 of the Directive.

41.          It is strongly recommended that the draft law leave no doubt that the lawfulness of detention may be reviewed only by a judicial authority which has the power to examine both the procedural and substantive issues concerning detention and is competent to order the individual’s release.

42.          Article 137 of the draft law seems to refer to alternatives to detention. It would therefore be helpful for the procedure under Article 127 of the draft law explicitly to incorporate the need to consider all alternatives before a decision to detain is taken. It would also be desirable for the draft law to clarify that detention should be imposed only as a measure of last resort, after consideration of all relevant facts pertaining to the individual, including his or her vulnerability, after careful examination of the necessity and proportionality of detention in each particular case, after full consideration of all sufficient but less coercive alternatives, and for the shortest time possible. The draft law could also usefully clarify that decisions concerning detention should be taken on an individual basis and that collectivedecisions are prohibited.[28]

43.          In terms of procedural safeguards, the draft law needs to provide explicitly that the individuals concerned shall have the detention decision served upon them and shall be informed of the reasons for their deprivation of liberty and of their right to challenge the lawfulness of detention and the conditions of detention, both in oral and written form, in a language they understand or are reasonably presumed to understand.[29] The draft law should also provide for a review of the continuing lawfulness of detention at regular intervals of reasonable length, either on application by the individual concerned orex officio, by a judicial authority competent to examine procedural and substantive conditions for the deprivation of liberty and with the power to order the person’s release and/or application of alternatives to detention, in the course of adversarial proceedings.[30]

44.          There are currently no remedies in the draft law to challenge the conditions in reception facilities. Assuming that the placement in those facilities represents a deprivation of liberty,[31] it is suggested that a complaint mechanism be explicitly provided for, in respect of complaints concerning conditions of detention, access to health care and limitations of rights associated with administrative detention. The remedy need not necessarily be a judicial one: in certain circumstances, appeals before an administrative authority in respect of conditions of detention have been found effective, as long as the authority is competent to ascertain if the person’s rights were violated and order the improvement of conditions or transfer to a facility where adequate conditions are provided.[32]

45.          Article 114 of the draft law refers to legal aid in proceedings before the administrative court in relation to an expulsion decision. This would not appear to cover any challenge to their placement in reception facilities (although as noted above the draft law does not seem to provide for other appeals before a court). It is strongly recommended that the draft law provide explicitly that persons inadministrative detention have the right to legal assistance and representation and that the relevant authority shall provide them with all necessary means for gaining access to such services, including legal aid. Legal assistance should be provided in a language the person understands or is reasonably presumed to understand.

46.          Article 133 of the draft law provides for stricter policing of an individual in reception facilities for a variety of reasons, including being rude to police officers or other employees in the reception facility. This is highly subjective, particularly as decisions on stricter policing are made by the police. The draft law needs to be explicit as to what stricter policing measures are envisaged (Article 133 of the draft law only mentions that they include restrictions on movement within the reception facility) and provide safeguards to ensure that sanctions are proportionate to the alleged misconduct and should not include solitary confinement, which does not appear suitable in the context of administrative detention.[33] Remedies to enable these measures to be challenged should also be provided.

47.          Article 135 allows for stricter policing of minors if they are with a parent or legal representative. As with Article 133, it needs to be more clearly drafted as to the procedures and grounds for imposing stricter policing and the particular points to be taken into account in relation to minors or other vulnerable groups.

48.          In this context, the draft law should provide that complaints by persons in administrative detention regarding ill-treatment or abuse, including torture or other cruel, inhuman or degrading treatment by staff or fellow detainees at the reception facility, should bepromptly and effectively investigated by an independent authority and effectively remedied, and thatprocedures should be put in place for this purpose as required by Article 3 of the ECHR. In the absence of complaints but when there are reports or indications to a similar effect, an investigation should be initiated by the competent authority of its own motion. The victim needs to beinformed about the course of the investigation and should beallowed to participate.

d.    Private and family life

49.          Private and family life may be engaged both in terms of the right to family reunification (the right for non-national family members to join a person in the state where he or she is present) and in terms of the potential expulsion of non-nationals from a state where they have family or private life links.

50.          In respect of expulsion, comments on the obligation to consider claims under Article 8 of the ECHR are provided in para. 24 above.

51.          Articles 45 and 46 of the draft law provide a right to temporary residence for family reunification purposes to all immediate family members of foreigners holding temporary or permanent residence in Montenegro. This is a positive step. Permanent residence follows from temporary residence after five years if the conditions are satisfied (Articles 87 and 88 of the draft law). It is also commendable that Article 45 gives the authorities discretion to admit family members not coming within the defined class where there are distinct personal or humanitarian reasons. However, the provisions do not provide any details as to the procedure to be followed, including deadlines for the authorities, or the supporting documentation required for an application for family reunification.[34] It would be useful to set out the applicable procedure in this law, or in secondary law.

52.          Article 47 of the draft law on marriages of convenience could be revisited regarding the list of circumstances that may indicate a marriage of convenience has taken place. It is important that the draft law provide for a decision-making process, and particularly appeal proceedings, which are fair and allow those concerned to present their case fully.[35]

53.          Article 155 of the draft law provides for family reunification for EU/EEA/Swiss nationals. However, there is no definition of the class of family members entitled to join the principal. Since this provision is presumably intended to reflect EU law, and under EU law the class of beneficiaries may be wider than that provided for in Article 45 as regards foreign nationals, a definition of the family members concerned would be helpful. It may also be useful to clarify that Article 45 applies to non-EU/EEA/Swiss nationals only (if that is indeed the case).

54.          Article 180 provides that family reunification for Montenegrin nationals with their third country national family members will be the same as that for EU/EEA/Swiss nationals. This will avoid the contentious problem of reverse discrimination against own nationals which occurs in some EU Member States such as the United Kingdom and the Netherlands, where EU nationals living and working in their state have better family reunification rights their own nationals who are subject to more restrictive laws.[36] However, since the family reunification rights of Montenegrin nationals are also covered by the potentially more limited provisions of Article 45, it would be advisable to reconsider the relationship between these two provisions and make the necessary clarifications.

55.          The draft law guarantees protection of personal data in accordance with the “Law governing personal data protection” (Article 3). It is not clear whether this is a reference to a specific, enacted law or a general reference to legal provisions on data protection either in the draft law or in other legislation or both. The draft law itself includes detailed provisions on data storage and use (Article 207 and 208) and allows the authorities to search foreign nationals and take fingerprints and photographs without authorisation or consent (Article 131). All the legal provisions applicable to data protection should be clear and precise, in order to meet the requirements of Article 8 of the ECHR.[37] Where they appear in different documents, there should be no ambiguity about which take precedence, in any situation of conflict or inconsistency of provisions.

e.    Vulnerable groups

56.          The draft law identifies several categories of vulnerable people and provides on different occasions exceptions from certain administrative requirements and different forms of protection. For example, victims of trafficking and domestic violence and unaccompanied minors are entitled to temporary residence permits on humanitarian grounds (Article 53), in certain cases minors are protected from removal (Article 56) and victims of violence do not need to register their stay in a reception centre (Article 104).

57.          The draft law does not provide for the screening of persons to assess whether or not they are vulnerable, for example when adopting a return or expulsion decision, or a decision to detain them for that purpose. It would be advisable for screening to take place before a detention decision or order is made and at regular and reasonable intervals throughout detention. Appropriate protective action should be taken whenever a person is assessed as beingin a situation of vulnerability.

58.          Article 55 of the draft law refers to a reflection period of 90 days for victims of trafficking to decide whether or not they wish to cooperate with the prosecution of traffickers.  Although this provision reflects the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings,[38] the draft law may need to elaborate on what happens at the end of the 90-day period and what is to be done to protect victims’ rights and provide them with adequate support in the interim, including appropriate accommodation, psychological and material assistance, access to emergency medical treatment and counselling and information, in particular as regards their legal rights and the services available to them.

59.          The draft law could usefully introduce an obligation for all relevant actors to take steps to try and identify victims of trafficking among persons considered for placement or already placed in administrative detention.[39] Where victims of trafficking are thusidentified, they should be released and offered a recovery and reflection period, with the attendant rights outlined above in para. 58. After that period, if they continue to be considered for placement in detention, their situation should be reassessed to ensure that any detention, including its conditions, is not incompatible with the requirements of Articles 3 and 5 of the ECHR.[40]

60.          Article 56 of the draft law refers to witness protection for those given a temporary residence permit for humanitarian reasons. The draft law may need to elaborate more on how such protection is given. The same provision also deals with the return of a minor who is “undeniably a victim of the criminal offence of human trafficking”, but does not make clear the procedure for making such a determination or the standard of proof required.

61.          Article 135 of the draft law deals with detention of children if forced removal cannot be ensured in any other way. It should be explicit that detention of minors in the migration context can only be a measure of last resort; otherwise, detention may result in a violation of Article 5 § 1 of the ECHR.[41] The draft law is not clear as to the process for deciding when detention of a minor may be appropriate. It should stipulate that the best interests of the child must be taken into account before detaining him or her. When, exceptionally, children are held with their parents in administrative detention, the deprivation of liberty should be for the shortest possible period of time, and after having established that the placement of the family with children in administrative detention is a measure of last resort for which no alternative measures are available. All efforts should be made to release the detained children and place them in accommodation suitable for children.

The draft law also needs to reflect the case-law on Article 3 of the ECHR. In particular, the Court has found a violation of Article 3 of the ECHR on a number of occasions on account of the placement in migrant detention centres of accompanied children[42] and unaccompanied children.[43] In cases concerning the placement of accompanied foreign minors, it has found a violation of Article 3 in particular on account of a combination of three factors: the child’s young age, the length of the detention and unsuitability of the premises for the accommodation of children.[44]

62.          Although the draft law refers to children and unaccompanied children in various places, it is strongly recommended that their vulnerable situation and best interests be addressed in a more comprehensive manner. The draft law may also need to specify that the appointment of a competent guardian for unaccompanied children should happen promptly after screening and in any case before a decision in application of migration or asylum law is made in the child’s respect, in order to ensure that the child’s best interests and overall well‑being are protected and safeguarded.

f.      Procedural guarantees

63.          While the law includes provisions on decisions and administrative appeals, these provisions are far from transparent. For instance, as regards applications for temporary residence permits (Article 63), permanent residence permits (Article 91) and return decisions (Article 107), the draft law does not specify that decisions must be in writing. Nor does it indicate that the decision must be reasoned, or provide information on where and how to appeal. While in some cases there is a right of appeal (in respect of refusals of temporary residence permits) there is apparently no such right in respect of refusal of an application for permanent residence which only carries a reference to an administrative dispute.[45] Time‑limits on appeal rights (where they exist) are short and there is no indication of what court the individual should apply to. As noted above, it is also problematic that appeal rights against refusals of visas or entry are non-suspensive.

64.          It would be advisable to centralise and harmonise the provisions on the form of decisions and appeal rights. For instance, a general provision that where the authorities make a negative decision the individual is entitled to receive that decision in writing accompanied by reasons would be advisable.

65.          For appeals against various decisions provided in the draft law to be considered effective remedies, it is necessary to provide a reasonable period of time for submissions to be made.[46] The draft law may also need to provide explicitly for procedural guarantees such as access to information about the procedure applied in respect of foreigners and about the legal assistance available.[47] Some further thought should be given to the authority competent to decide on appeals, in order to meet the requirements of independence and impartiality.  

66.          Where a complaint concerns allegations that the person’s expulsion would expose him or her to a real risk of suffering treatment contrary to Article 3 of the ECHR, the effectiveness of the remedy for the purposes of Article 13 of the ECHR requires imperatively that the complaint be subject to close scrutiny by a national authority, that there be independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 of the ECHR, and that the procedure be carried out with reasonable promptness. In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect. The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the ECHR. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 to the ECHR where an arguable claim of a risk to life or limb is made out.[48]

By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the right to respect for his private and family life, Article 13 of the ECHR in conjunction with Article 8 requires that states make available to the individual concerned the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.[49]

  IV.        Analysis of provisions on statelessness

67.          The draft law proposes to determine statelessness in a procedure for issuing a travel document for stateless persons in Montenegro. Article 60 of the draft law creates a procedure in the Montenegrin legal system for stateless persons to have the fact of their statelessness formally established, thus generally acknowledging the importance of establishing this legal fact. However, the content of the article raises a number of concerns, questioning the effectiveness of its aim to formally recognise the statelessness of individuals. Perhaps even more concerning are elements that are missing from the text and not regulated anywhere else in the law.

68.          Before going into more detail, it is important to clarify several definitions. Article 2 of the draft law defines a stateless person as a “foreign national who is not considered as a national by any state under the operation of its law”. This is largely in line with the 1954 Convention relating to the Status of Stateless Persons, which defines a stateless person as a “person who is not considered as a national by any State under the operation of its law” [emphasis added].[50] However, the use of the term “foreign national”, instead of “person” as in the 1954 Convention, is somewhat confusing in the English language, as it implies that the person holds a foreign nationality and thus contradicts the rest of the definition. This may merely be an issue of translation; if not, it would be advisable to replace the word “foreign national” with “person” in the definition of a stateless person.

69.          A “foreign national” is defined in Article 2 as a “national of a foreign country or a stateless person”. As discussed in the preceding paragraph, it is confusing for the term “foreign national” to encompass stateless persons. It may therefore be more appropriate to refer to foreign nationals (as meaning those who hold the nationality of another state only) and stateless persons in respect of all of those provisions which are intended to apply to both groups. In Article 60, references to “foreign nationals” should be replaced by “persons”, to reflect the definition proposed in para. 68 above.

a.    Access to the procedure to determine statelessness status

70.          Although Article 60 of the draft law allows a stateless person to reside in Montenegro based on a stateless travel document and a temporary residence permit, this article does not contain any provisions regulating the stay of individuals who are in the process of establishing their statelessness and applying for the relevant residence permit. This raises concerns about whether a person who has applied for statelessness status determination can stay in Montenegro. Such a person has not definitively been determined to be stateless, has not received a travel document yet, and has not obtained a temporary residence permit.

71.          Lack of an explicit authorisation to stay on the territory of the state may lead to detention with a view to removal from the territory of the state. Chapter VI of the draft law that regulates unauthorised stay of non-nationals, their removal and detention does not take into account the specific needs and vulnerability of persons who do not have a nationality, and does not exempt individuals pending the determination of their statelessness from detention. In Kim v. Russia, the European Court of Human Rights acknowledged the “particularly vulnerable situation” of the stateless applicant in immigration detention and considered that detention pending removal despite the lack of any realistic prospect of expulsion of a stateless person as well as the lack of diligence by the authorities in the conduct of the proceedings amounted to a violation of Article 5 of the ECHR.[51]

72.          Coming into contact with state authorities without procedural guarantees against detention at least for the duration of the status determination may be highly risky, and thus effectively inhibit access to the procedure for stateless persons who reside in Montenegro without appropriate authorisation.

73.          To provide practical access to the statelessness determination procedure and to prevent arbitrary detention of stateless persons, it would be advisable to authorise temporary residence for those who have submitted an application for the stateless persons travel document or to refrain from removing an applicant from the territory pending the outcome of the determination process.[52] It is moreover important to guarantee through legislation a set of basic rights for individuals awaiting determination of their statelessness status, preferably analogous to the rights granted to individuals awaiting decisions on their asylum claims.[53] 

74.          Article 60 of the draft law provides that the application for statelessness determination can be submitted to “the Ministry in the place of his residence.” It is unclear whether that is sufficiently narrow for an applicant to know exactly where he or she needs to go to submit an application, and who exactly is tasked with considering the merits of the application. Clarifying these issues may require implementing secondary legislation.

The Article also refers to a “required format”, but no explanation of what such a “format” entails is given. The specific format of an application, depending on the exact implementation, may become problematic if information about the format is not easily accessible, if the form is too complex so as to impede the ability to apply without legal aid, or if the language is inaccessible to most stateless persons. If any forms, templates or questionnaires are used in the application process for statelessness status determination, it is essential that those are practically accessible and easy to use for potential applicants. 

Such details may be important for evaluating whether a procedure will be effective, and whether there would be a breach of an applicant’s procedural rights. It is also important to ensure that the competent authority possesses enough knowledge, or will receive adequate training, on issues of statelessness and applicable international norms, and is able to develop relevant expertise.[54]

75.          Article 60 of the draft law speaks of submitting the application personally. Depending on the geographical accessibility of the location(s) where the application needs to be submitted, this may be problematic for some applicants and it may be necessary to introduce the possibility of applying by post or electronically.

76.          Availability of free legal aid may be an important factor for the ability to access the statelessness determination procedure. The draft law does not explicitly mention the possibility of receiving free legal counselling during the statelessness status determination and any subsequent appeal.

b.    Content of the statelessness determination procedure

77.          In accordance with Article 60 of the draft law the Ministry is authorised to investigate the issue of the applicant’s statelessness by exchanging information with other state and non-state actors. The draft law should clarify that this can only be done if there are no pending asylum claims by the applicant. If it appears that the applicant has asylum claims, he or she needs to be referred to the asylum procedure and the statelessness determination procedure needs to be suspended until the asylum claim is resolved.[55]

In order to avoid the risk of information about asylum-seekers being shared with foreign authorities contrary to national and international provisions, the draft law or another law should explicitly regulate the interactions between the statelessness determination procedures and the asylum procedure in Montenegro.[56]

78.          Article 60 of the draft law stipulates a number of grounds for rejecting an application for the stateless person’s travel document and the determination of the statelessness status.

The first ground is “the conducted procedure has found an applicant not to be a stateless person”. It is reasonable to reject an application for the determination of statelessness status if it has been decided that the applicant is not stateless. However, the current formulation leaves room for arbitrariness. According to the definition of a stateless person, a person is not stateless if he or she is a national of a state. A better ground for rejection of an application would be that the applicant “has been found to be a national of a specific state”. That would impose a certain standard to justify that the applicant is not stateless by determining what the nationality of the applicant in fact is. Leaving an applicant in an uncertain situation of neither being stateless, nor having any certainty as to nationality, does not resolve the legal insecurity of an applicant for statelessness status. 

The second ground is that “an applicant has not settled his outstanding property-related liability based on a final judgment”. This ground for rejecting the recognition of statelessness violates the definition of a stateless person in article 1 of the 1954 Convention, and therefore violates the obligations of Montenegro under that Convention. The issue of property-related liability is irrelevant to the issue of statelessness.

It is further possible that this provision in fact has a certain punitive character, without the appropriate procedural safeguards that accompany punitive measures. It discriminates against potentially stateless persons by imposing a heavier penalty on them with regard to property liability compared to persons who do not need to apply for the statelessness determination status, and will not face that obstacle. Punitive measures related to property liability should be regulated in legislation that addresses those issues, and managed by competent authorities dealing with those matters. To the extent that this ground for rejecting an application for statelessness status may disproportionately target a specific ethnic, religious or otherwise vulnerable minority, it may also constitute a form of indirect discrimination.

The third ground states that an application can be rejected “if it is required by the international commitment assumed by Montenegro”. Identifying stateless persons and providing them with an identity document is a matter of securing their human rights. An international commitment cannot be used as a justification for the violation of human rights commitments assumed in the international treaty in the form of the 1954 Convention. If Montenegro has entered into conflicting obligations in a different international legal instrument, that does not exempt it from its obligations under the 1954 Convention, in accordance with Article 26 of the Vienna Convention on the Law of Treaties of 1969, to which Montenegro is a party.

79.          Article 60 of the draft law provides for an administrative appeal to the Ministry against a decision rejecting an application for stateless status. In order for the appeal process to be effective, the law or implementing legislation regulating statelessness status determination needs to stipulate certain procedural guarantees (see the next paragraph), including rules on how to assess evidence. The responsible authority should be under a clear legal obligation to provide reasons for decisions on statelessness status, which can be assessed upon appeal.  

80.          The Montenegrin authorities are strongly encouraged to regulate in the law establishing a statelessness determination procedure the following issues: [57]

a.   information on eligibility criteria, the determination procedure and the rights associated with recognition of statelessness, which should be widely disseminated by the authorities in a range of languages; counselling regarding the procedures to be provided to all applicants in a language they understand;

b.   the right of the applicant to be heard in an interview with a decision-making official;

c.   applications to be submitted in writing and assistance with this to be provided if necessary;

d.   assistance for translation/interpretation to be available in respect of written applications and interviews;

e.   the right of every member of a family to make an independent application;

f.    the right of an adult to make an application on behalf of a dependent child and the availability of special procedural guarantees for unaccompanied children;

g.   the right of a child to be heard where he or she has the capacity to form and express a view;

h.   right of applicants to have access to legal counsel; where free legal assistance is available, it is to be offered to applicants without financial means;

i.    determinations to be made on the individual merits of the claim with reference to country information regarding nationality law and practice in the relevant states, including information pertaining to the law and practice during periods in the past which are of relevance to the case under examination; countries with which the applicant has no relevant link should not be investigated to exclude possible nationalities of an applicant in a determination procedure;

j.    if the determination is made in a judicial setting, provide for an adversarial process;

k.   the standard of proof, which should not be set too high, similarly to the asylum procedure, “to a reasonable degree”;

l.    the burden of proof should be shared between the state authorities and the applicant; the responsibility to substantiate statelessness with documentary evidence should not be fully placed on the applicant;

m. a wide variety of evidence should be admissible, including, in addition to state-issued documents, certificates of educational and healthcare establishments, as well as personal testimonies;

n.   decisions to be made in writing with reasons;

o.   decisions to be made and communicated within a reasonable time;

p.   time-limits for taking decisions, and possibility of extending them in cases that prove particularly complex;

q.   right to access to the UNHCR.

81.         Without these elements the procedure for determining the status of statelessness is not fully established. The current draft law does not provide sufficient clarity as to how decisions about potential statelessness of applicants will be reached. These issues cannot simply be resolved by reference to general norms on administrative procedure, as they are specific to the phenomenon of statelessness and need to be regulated within an established status determination procedure especially for statelessness. 

c.    Status of persons recognised as stateless

82.          Once it has been established that a person is stateless, it is important to supply such a person with a document that can be used by that person to prove his or her identity, as well as his or her statelessness. Article 60 refers only to a stateless travel document. It is questionable whether a travel document, as opposed to an internal identity document, is a desirable default document to issue.[58] It would be advisable to provide in the draft law that stateless persons can also access identity documents.

83.          Pursuant to Articles 44 and 61 of the draft law, a stateless person may be issued with a temporary residence permit under certain conditions.[59] This means that a person who is recognised as stateless in Montenegro does not automatically acquire residence rights, but instead needs to comply with a number of potentially prohibitive conditions. It is important to note that, to date, all countries with a specific statelessness determination mechanism establish a right of residence for those recognised as stateless.[60]

84.          Imposing conditions on access to residence for stateless persons is a much heavier measure than imposing similar conditions on nationals of foreign states. Unlike nationals of foreign states, stateless persons do not have a default state of nationality where they can go if they fail to comply with requirements for residence.

85.          As the draft law stands now, stateless persons not only lack automatic access to residence, they also need to comply with all the same requirements as nationals of foreign states set out in Article 44 of the draft law as well as additional conditions stipulated in Article 61. Imposing additional conditions for access to residence rights on stateless persons is not compatible with the 1954 Convention.[61] Treating stateless persons differently from other foreign nationals by way of imposing additional conditions on access to residence may disproportionately affect a particular ethnic or religious minority in Montenegro, which without appropriate justification may amount to discrimination.

86.          It would be highly advisable that the draft law grant individuals who have been recognised as stateless rights to authorised residence in Montenegro without fulfilment of any further conditions.

87.          Article 65 refers to the presentation of a foreign travel document or identity document issued by another country in order to obtain the extension of residence rights. This Article does not seem to take into account the situation of the stateless persons, who do not have a foreign travel document, but a Montenegrin travel document for stateless persons. It would be advisable to adjust the wording of the Article accordingly and to leave no doubt that stateless persons can apply for the renewal of their residence rights on the basis of their Montenegrin travel document.

88.          A similar problem concerns the wording of Article 89, which requires a person to hold a foreign travel document in order to obtain permanent residence permit. This requirement potentially excludes stateless persons from ever being able to access permanent residence. It is recommended that the exception for refugees in the last paragraph of the same Article be extended to stateless persons as well. Alternatively, the term “foreign document” could be formulated in a manner that leaves no doubt that a stateless person’s travel document issued by Montenegro is also included.

89.          Inability to access permanent residence status could inhibit the ability of stateless persons to settle, integrate and eventually obtain a nationality.[62] It would be advisable for permanent residence status to be made unambiguously at least as accessible for stateless persons as for foreigners generally. It would also be advisable for the draft law to facilitate access of stateless persons to permanent residence by exempting them from some or all requirements applicable to foreigners generally. This would be in line with the 1954 Convention,[63] as well as with other obligations of Montenegro to avoid and reduce statelessness, in particular Article 4(b) of the Council of Europe European Convention on Nationality.[64]

90.          Under the current draft law stateless persons appear to be at a high risk of residing in Montenegro without authorisation, and may experience significant impediments in seeking authorised residence during and after the procedure for the establishment of their statelessness. Moreover, articles that generally regulate the authorisation for residence do not seem to take into account the peculiar situation of stateless persons. It would be advisable for the draft law (for example, Article 10) to be amended to unambiguously cover the situation of stateless persons who have a stateless person’s travel document issued by Montenegro.

91.          Stateless persons without authorisation to reside because their status determination is still pending, or because they did not manage to comply with the highly prohibitive requirements for accessing authorisation to reside for stateless persons, are in principle obliged to leave Montenegro (Article 105). According to the draft law, various forced removal proceedings may be initiated against them, including detention with a view to deportation.

92.          Stateless persons, due to their statelessness, are a lot less likely to be able to enter another state and so will be legally and practically unable to comply with an order to leave the country.

93.          Article 124 allows the police to impose restrictions on the freedom of movement for foreign nationals whose forced removal is not possible. Stateless persons are at a particular risk of falling within different grounds for deportation detention through no fault of their own, simply because of their status as a stateless person. The draft law should provide protection against arbitrary detention,[65] which stateless persons without authorised residence are liable to face, as the attempts to deport them are often futile, leading to prolonged, pointless and therefore arbitrary detention cycles.

94.          In order to prevent stateless persons from falling victim to arbitrary detention cycles the draft law should authorise residence for stateless persons as well as applicants for the statelessness determination procedures. Moreover, it is advisable to mention stateless persons as a particularly vulnerable group in the context of deportation detention, and establish targeted safeguards that prevent illegitimate detention of stateless persons where realistic prospects of speedy removal are lacking. 

    V.        Conclusions and recommendations

95.          The draft law provides for extensive rules concerning the entry, the stay and the removal from territory of foreign nationals. The incorporation of provisions on non‑refoulement and on special care and protection for certain vulnerable groups is welcome. To further improve the text, more attention needs to be paid to the principles of legal certainty and quality of law, which require that the law be accessible, foreseeable, precise and clear.

96.          In this sense, it is recommended that the use of terminology such as “national security”, “humanitarian reasons”, “illegal stay”, “illegal border crossing” be clarified and harmonised. The wording of grounds for removal and expulsion should also leave no place for different interpretations.

97.          In terms of legal drafting, the connection between different provisions, for example provisions which set out certain requirements and provisions which set out exceptions to those requirements, should be made more explicit. As the text now stands, the decision‑making process does not incorporate a clear analysis of exceptions. This is particularly important in respect of decisions on expulsion, which should explicitly reflect the grounds of non-refoulement and the vulnerability of those concerned.

98.          It is also recommended that the decision-making process under the law incorporate explicitly the obligation to assess claims under Article 2, 3, 5, 6 and 8 of the ECHR, to provide reasons for decisions taken, and to serve the decision in writing on the person concerned, in a language he or she understands or is reasonably presumed to understand.

99.          It is, in particular, recommended that the provisions on appeals and detention orders in the draft law be reviewed in order to clarify:

a.   what independent authority (and, in respect of deprivations of liberty what judicial authority) is responsible for examining appeals;

b.   that appeals have an automatic suspensive effect if there are arguable claims under Articles 2 and 3 of the ECHR;

c.   the circumstances in which detention may be ordered and the obligation to consider alternatives to detention, particularly under Article 5 § 1 of the ECHR in the case of children;

d.   the procedural guarantees for a review of the lawfulness of detention as required by Article 5 § 4 of the ECHR (by a judicial authority, competent to examine the grounds of detention and to order release in adversarial proceedings, with access to free legal assistance);

e.   that the time for lodging and for examining appeals should be reasonable;

f.    in what conditions and for what procedures free legal assistance is available.

100.       It is also recommended that remedies compliant with Articles 3 and 8 of the ECHR be set out in the draft law in respect of complaints about conditions of detention, including allegations of ill-treatment by staff or other detainees, and in respect of the imposition of stricter policing measures.

101.       The draft law should include clearer provisions to ensure that Article 8 of the ECHR is fully complied with in the context of entry clearance, family reunification and expulsion and that decisions in these areas take full account of all the relevant personal circumstances of each individual.

102.       Further clarity and detail on the procedural safeguards and protections for vulnerable persons is needed, in particular in respect of victims of trafficking and accompanied and unaccompanied children. Humanitarian admission needs to be clearly stated as an exception to border control.

103.       The draft law creates a basis for a procedure that determines the status of a stateless person, but does not sufficiently elaborate the procedure in order for it to be a fully developed statelessness determination procedure. Numerous issues need to be regulated in order for the procedure to function as an adequate statelessness determination procedure, either in the draft law or in implementing legislation.

104.       The main problems with the position of stateless persons under the current draft law are lack of clear procedures for the statelessness status determination, highly restricted access to residence rights and the risk of arbitrary detention for stateless persons.

105.       The most pressing recommendations in respect of statelessness determination procedures are:

a.   a procedure for determining the status of stateless persons should be elaborated in detail, in accordance with the UNHCR Handbook on the Protection of Stateless Persons and the ENS Good Practice Guide.

b.   stateless persons and applicants awaiting the determination of their statelessness status should be granted access to authorised residence.

c.   rules regulating immigration detention should mention specifically stateless persons as a vulnerable category, and guarantees against stateless persons being detained in an arbitrary manner without a clear prospect of deportation to a specific country should be provided.