Detention in the context of return

CURRENT LAW

DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

The Returns Directive is the first EU law that lays down common minimum standards on detention in the context of return procedures. Furthermore, it is the first EU law on immigration to be decided on by both the European Parliament and the Council of EU Member States, otherwise known as the co-decision procedure (now known as the 'ordinary procedure' under the Lisbon Treaty).

The devotes several recitals and three articles (15-17) to the regulation of detention. Some of the main points include:

Detention should be limited and subject to the principle of proportionality, and its use is only justified to prepare return or to carry out the removal process, and if the application of less coercive measures would not be sufficient (Recital 16)
Third country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental human rights (Recital 17)
Detention should take place in specialised detention facilities (Recital 17; Article 16.1)
Unless other sufficient but less coercive measures can be applied effectively in a specific case, member states may only detain someone who is subject to return procedures in order to prepare the return, or to actually carry it out, particularly if there is a risk of absconding, or if the person hampers the removal process (Art 15.1)
Detention is to be ordered by admininstrative or judicial authorities (Art 15.2)
Third country nationals are to be released immediately if detention is found unlawful (Art 15.2.b)
If a reasonable prospect of removal no longer exists, then detention ceases to be justified (Art 15.4)
Detention may not exceed six months, and only as long as removal arrangements are in progress (Art 15.5). This can be extended by 12 months is there is a lack of cooperation from the third country national, or if there are delays in obtaining necessary documentation from third countries (Art 15.6.a-b)
Special attention should be given to vulnerable persons (Art 16.3)
Unaccompanied minors and families with minors are to be detained only in the last resort, and for the shortest appropriate period of time (Art 17.1)
Detained families will be kept separately and be given adequate privacy (Art 17.2)

The Returns Directive was due to be transposed into national legislation by 24 December 2010. Yet many have not yet done so, or only partially.

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