Proving who I am: the plight of people in detention without proof of legal identity

This expert blog by human rights expert and commentator, Vicki Prais, examines the issues faced by people in prison without proof of legal identity. Vicki explains how the absence of ID can in itself lead to detention for some people, and also causes a range of problems for those detained or leaving prison impacting on their ability to rebuild their lives. This blog is published in PRI’s Global Prison Trends 2020 blog series which explores some of the trends in-depth and offers some solutions or recommendations.

“Poland is not my country, but what is my country? I have nowhere to go and no one cares.  They said – you have no passport so we have to put you in detention.  But I came to you willingly – I argued. They never listened, if you have no papers, everyone thinks that you are lying.” Gasore, stateless former detainee in Poland, originally from Rwanda

These haunting words give a human face to the plight of people deprived of their liberty with no proof of legal identity.  According to Global Prison Trends 2020, more than 1.1 billion people worldwide are unable to prove their identity, the majority living in Africa and Asia, and more than a third are children who are unregistered. Whilst this figure is high, not all these people will experience problems relating to a lack of identity documents.  The absence of any formal identification, be it a birth certificate, passport or drivers’ licence can leave individuals in an invidious position and for those who find themselves in the criminal justice system there can be serious ramifications both in detention and post release.  It is difficult to know the exact number of people in prison who are unable to prove their identity as there are no global figures available but it is likely to be high.

The absence of any formal identification…for those who find themselves in the criminal justice system there can be serious ramifications both in detention and post release.

How do people find themselves in prison without any formal identity documents?  The reasons are various, as documented in Global Prison Trends 2020, including: ‘poverty, homelessness, family breakdown and mental ill-health (sometimes as a result of being unable to access vital services), as well as chaotic lifestyles, may all be contributors to people without ID ending up in prison.’ And other factors also contribute to this problem including irregular migration, trafficking, discriminatory laws and practices which may deny certain groups a nationality or prohibit women from passing nationality to their children. In other instances, bureaucratic obstacles prevent individuals from securing identity documents such as in the case of non-registration of births. In some cases people may be detained solely on the grounds of lack of ID or are detained for an indefinite period of time due to lack of identity documents, and therefore at risk of arbitrary detention.

This issue is more common than one would think and impacts a variety of different groups in detention including stateless people, ethnic minorities, foreign national prisoners, children, immigration detainees and those fleeing conflict or natural disasters. In general, also there are people who are in conflict with the law without a form of ID not belonging to any of these categories for a number of reasons as I wrote above. In this blog I look at a number of these groups and the attendant human rights issues that arise of being ‘undocumented’.

Although not homogenous there are certain categories of people who are disproportionately likely to end up in detention with no formal identification:

Statelessness: A No man’s land

Gasore’s story is sadly not unique as often stateless persons live in the margins of society and face a precarious and perilous existence. A stateless person is deemed to be a  ‘person who is not considered as a national by any State under the operation of its law’.  In short: stateless people lack the protection of a nation state, and the UN High Commissioner for Refugees estimates that there are several million in the world today.

These individuals cannot call any country their home and are at greater risk of arrest, arbitrary and prolonged detention because they do not have access to ID and/or travel documents.  On detention, it may take the authorities many months or even years to verify identities (and their age) all the while leaving stateless persons in legal limbo.  These individuals are, effectively, an “unreturnable person” according to the European Network on Statelessness.  The situation of stateless persons in detention has come to the attention of the European Court of Human Rights which found that such individuals are highly vulnerable to being “simply left to languish for months and years…without any authority taking an active interest in [their] fate and well-being.”[1]Furthermore, lack of ID is not, in and of itself, grounds to detain a stateless person as the UNHCR Handbook on Protection of Stateless Persons, makes clear: “being undocumented or lacking the necessary immigration permits cannot be used as a general justification for detention of such persons”.[2]  In such cases, it is likely that the detention would be deemed to be arbitrary.

The UN Human Rights Committee has taken a similar position: ‘The inability of a State party to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention’[3]

Immigration & Asylum Detention: Stuck between a rock and a hard place

There remains a close nexus between the criminalisation of irregular immigration, the use of administrative detention and non-documentation.  In many instances, asylum seekers will arrive in the receiving state without any valid ID papers which may have been confiscated by traffickers en route or lost in transit.

In such instances, the UNCHR Detention Guidelines stipulate that individuals may be detained for initial identity checks but only in line with international human rights standards and only for as long as efforts are being made to establish an individual’s identity. If detention goes beyond the initial period, it may be deemed to be arbitrary.

Children

According to the UN Global Study on Children deprived of liberty, published in 2019, there are estimated to be 160,000-250,000 children in remand centres and prisons worldwide on any given day; at least 410,000 annually. Under international human rights law, children should only be deprived of their liberty as a measure of last resort and, if so, detained separately from adults.[4]  Yet children are regularly detained for “status” offences including vagrancy, truancy, loitering and begging.

For children, a birth certificate proving they under the age of 18 can be the gateway to much needed legal protection and safeguards in the detention setting attached to children, most notably under the UN Convention on the Rights of the Child and the UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules).  Conversely, a lack of an ID can have a catastrophic effect on their detention; if there is uncertainty about their age and legal status they may be tried as adults and sent to prison.  The UN Global Study notes that lack of birth registration is most likely to impact children who are already marginalised due to a variety of factors including low socio-economic status or immigration status.

For children, a birth certificate proving they under the age of 18 can be the gateway to much needed legal protection and safeguards in the detention setting attached to children

Undocumented children face challenges in the context of counter-terrorism.  In its report, Children affected by the Foreign-Fighter Phenomenon, the UN notes that in cases where a child’s identity documents has been obtained in a non-traditional or unlawful manner, States should act in the best interest of a child and take flexible measures to ensure that legitimate identity papers are secured for each child.  This is a particular problem in the case of children born in areas formerly controlled by ISIL in Iraq and Syria as they were only issued with ISIL birth certificates.  These children are at risk of being rendered stateless; the UN Security Council has reiterated the importance of ensuring universal birth registration.

Sierra Leone: Case study

Sierra Leone provides an interesting case study on how the lack of an ID affects children, and possible ways forward. According to the NGO AdvocAid, the lack of an identity document becomes a point of contention when trying to establish the age of an individual. In such cases, the police will endeavour to undertake an age assessment via document checks but if that is not possible, it will fall to medical personnel to make the assessment.

In addition, the child themselves will try to prove their age by providing further evidence such as an ‘under 5 card’ (immunisation card), school reports or a birth certificate.  However, problems arise as many families do not keep the ‘under 5 cards’.

The absence of identity documents has also proved problematic for individuals who wish to stand as sureties in bail applications, which can lead to bail being denied and further use of imprisonment.

In AdvocAid’s view, these difficulties may be rectified by more consistent and regular documenting of births. In practical terms, hospitals could provide weekly handover reports of all births to the national ID registration body which would then issue birth certificates to be collected at a later date by family members.  In addition, a public awareness campaign around the importance of having an ID card would be a useful way forward in addressing this issue.

What is the way forward for those children caught up in the justice system without proof of identity?  The UN Human Rights Committee on the Child, urges States, in the first instance to provide a birth certificate promptly and free of charge. In the absence of a birth certificate, the authorities should accept other documentation that can prove age e.g. school reports, notification of birth, extracts from birth registries, testimonies from teachers, religious or community leaders.  In the last resort, an age determination assessment should be undertaken in a prompt, child- and gender-sensitive manner.  The least invasive method of assessment should be applied; where the evidence is inconclusive, the child or young person should be given the benefit of the doubt.

Impacts and Challenges for those in prison and being released with no ID: Invisible and excluded

The current predicament facing people who are released from prison without proof of legal identity is neatly summed up by Anthony Dixon, the Director of the Parole Preparation Project in New York: “Without access to something as basic as an ID, you’re still inside while you’re outside”.

In prison, individuals without ID may be excluded from presidential pardons, parole as well as access to educational and training opportunities.  It may also cause problems in terms of family visits if authorities require proof of a family connection.

For many people leaving prison, the first 3 weeks are the most critical as individuals seek to build a life beyond the prison gates, to find a structure, stable housing, employment, apply for social security payments, and open a bank account. Identification documents provide a critical and crucial lifeline without which these tasks become all the more challenging and present a huge barrier to meaningful reintegration back into society and may increase the risk of recidivism.

In prison, individuals without ID may be excluded from presidential pardons, parole as well as access to educational and training opportunities.  It may also cause problems in terms of family visits if authorities require proof of a family connection.

Data from the Californian Department of Corrections and Rehabilitation showed that from July – December 2019, approximately 30 per cent of people left prison without ID.

In these cases, unfortunately, the advent of COVID-19 has thrown up yet more difficulties for people leaving prison. In the U.S., many State department licensing offices, responsible for issuing photo ID such as a driver’s licence have been forced to close during the pandemic, leaving many people in vulnerable situations. There are pockets of good practice: in Washington D.C., the Department of Motor Vehicles allows people recently released from prison to apply online and scan a copy of their prison ID to get a temporary, six-month identification card, while they gather the records needed to get a more official, federally-compliant ID.  This service has continued during the pandemic.

Recommendations

As a way forward I offer the following recommendations to lift the barriers and impacts for persons who are detained or in the criminal justice system without formal ID.

• Stop criminalisation of people ‘undocumented’: The practice of detaining asylum seekers, stateless persons and children partially or fully on the grounds of lack of identity documents raises a wider debate around the criminalisation of being undocumented. In all cases, detention should be a measure of last resort, proportionate and on legitimate grounds. I would put forward that detention on a lack of ID does not meet this threshold. In UNHCR’s view, States should not to detain asylum seekers solely on the grounds that they cannot obtain documentation from their country of origin.
• Support processes to obtain ID for persons in detention: To address the ongoing problems for many people in prison who lack ID a proactive, policy-driven and positive investment by States to improve the situation is needed now more urgently than ever. This could include prison authorities working with other government departments and consulates in the case of foreign nationals to obtain ID.
• Do not discriminate: A lack of ID should not be a reason for someone to be excluded from any part of prison life from contact with the outside world to vocational and work programmes.
• Support people leaving prison without ID: For people about to be released from prison who do not have ID, authorities should work with these individuals, in good time before release, to help them secure their ID papers – either those issued in the past and lost, or new ones.

People like Gasore, should not be excluded from building a future and a life beyond the prison gates purely on the grounds of being undocumented.

Endnotes and thanks

The author would like to thank Cynthia Orchard, human rights lawyer with expertise in statelessness issues for her input in a personal capacity and Lydia Kembabazi, Legal Manager, AdvocAid, Sierra Leone for her contribution.

[1] Kim v Russia (Application no 44260/13), 17 July 2014

[2] Para 112

[3] UN Human Rights Committee, General Comment 35 on Article 9: Liberty and Security of Person , para 19, CCPR/C/GC/35, 16 December 2014  – https://www.refworld.org/docid/553e0f984.html

[4] Article 37(b), UN Convention on the Rights of the Child