Fakten, Hintergründe

European Union Agency for Fundamental Rights
Detention of third-country nationals in return procedures
November 2010

Executive Summary

This report deals with deprivation of liberty of irregular migrants pending return. It examines six broad issues: the grounds for detention; the principles of necessity and proportionality; maximum length of detention; procedural safeguards to prevent arbitrary detention; alternatives to detention; and detention of children.

The grounds for any deprivation of liberty must be set forth in law in a clear and exhaustive manner. Such grounds must also be legitimate in light of Article 5.1 of the European Convention of Human Rights (ECHR). Parameters for detention in order to prevent unauthorised entry or to facilitate removal have also been set out in European Union law through Article 15 of the Return Directive, which requires that the individual is subject to return procedures. Nevertheless, in some cases the fact of being an irregular migrant appears sufficient to justify detention. In other cases, domestic immigration or aliens acts envisage the detention of foreigners for grounds that are unrelated to prevention of unauthorised entry or facilitation of removal.

Even when based on legitimate grounds, detention has to fulfil certain additional requirements in order not to be arbitrary. Return proceedings have to be carried out with due diligence and there must be realistic prospects of removal. In addition, Article 9 of the International Covenant on Civil and Political Rights (ICCPR) has been interpreted to require that, in order not to be branded as arbitrary, detention has to be necessary, for example, to prevent absconding or interference with evidence. Similarly, Article 15.5 of the Return Directive states that detention shall be maintained for as long as it is necessary to ensure successful removal. These requirements should be examined in each individual case. In addition, once released, migrants are entitled to basic fundamental rights.

Indefinite pre-removal detention is arbitrary. After a certain period of time has elapsed and the removal has not been implemented, deprivation of liberty loses its initial purpose. The Return Directive is the first binding supra-national document providing a maximum length of pre-removal detention: it sets the time limit at six months and exceptionally at 18 months, for which, however, the directive was strongly criticised internationally, as well as by civil society. The duration of detention has to be determined in light of the circumstances of each individual case. Several European Union Member States have established mechanisms for automatic periodic reviews of detention, which are a useful tool to prevent detention being unduly prolonged.

A number of procedural safeguards have been set up to reduce the risk of unlawful or arbitrary detention. These include the right to be informed of the reasons for detention in a language the person understands, the right to judicial review of the detention decision and legal assistance. As the findings of this FRA research show, in practice, there may be obstacles to the exercise of these rights. Another issue that requires improvement is information and counselling on the right to seek asylum for persons deprived of their liberty.

Detention can become arbitrary if the purpose for which it was ordered can also be achieved by applying less restrictive measures, such as regular reporting to the police or residence restrictions. Although many EU Member States provide for the possibility of imposing alternatives to detention, this is often done only exceptionally and primarily for particularly vulnerable groups. At the same time, some good practices that combine release with individual counselling by case workers are emerging.

International law strongly discourages the detention of children. Detention has to be a measure of last resort and for the shortest appropriate period of time, both for separated children as well as children with their parents or primary caregiver. At the same time, however, detention of children to prevent unauthorised entry or to facilitate their removal is not uncommon in Europe, including in facilities that are not equipped to cater for their needs.

For each of these issues, this report provides suggestions in the form of FRA opinions on how to bridge some of the existing gaps. These are set forth at the end of each section and reproduced in a consolidated manner in the next section.

Download [.pdf, 1280kb]