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Legal grounds for detention
Immigration detention in Luxembourg is based on the following legal texts:
- The Law of 28th May 2009 concerning the detention centre (LCR)
- Regulation of the Grand-Duchy of 17th August 2011 establishing conditions and practical modalities of detention in the detention centre (RGCR)
- The modified law of 29th August 2008 on the free movement of people and immigration (recast of 25th July 2011), chapter 5, Removal (section 2, ‘detention decisions’; section 3, ‘implementation of removal decisions)
Legal grounds for the minimum age for detention
An unaccompanied minor may be detained in a facility that is appropriate for the needs of the persons of his age. The best interests of the child will be taken into account. Under law, a special administrator is to be appointed to an unaccompanied minor as soon as possible.
Legal grounds for the detention order
A foreign national can be detained in order to prepare the implementation of a removal decision, when there is a request to transit the foreign national by air (e.g. Dublin Regulation), or when the foreign national is in the ‘waiting zone’ for more than 48 hours. The decision to detain is made at the ministerial level. Detention is ordered if a non-custodial ‘mandatory residence’ is not imposed on the foreign national. The decision to detain can be taken if there is a risk of absconding, or if the foreign national hampers or avoids the preparation of return or the removal process.
Legal grounds for the judicial review of the detention order
The foreign national may appeal the detention order in front of an administrative tribunal, who then decides on the grounds of the detention order. This appeal must be introduced within one month of the notification of the detention order. The administrative tribunal is to take decisions with all urgency, in any case not later than ten days after the appeal has been lodged.
Legal grounds for the right of appeal against the detention order, or to challenge
The judgment of the administrative tribunal may be appealed before the Administrative Court. In order for the appeal to be accepted, it must be introduced within three days of the notification of the decision of the tribunal. The Administrative Court is to take decisions with all urgency, in any case not later than ten days from the introduction of the appeal. During the time it takes to prepare the appeal, and for the Court to consider it, the removal decision – and also the decision of the tribunal – will be suspended.
Legal grounds for the right of information about the detention order and/or the reasons of detention
The foreign national will be notified of his or her detention order by a member of the Grand-Duchy police, who provides the information in the capacity as an officer of the judicial police. The information is provided in writing, with a receipt, in a language that the foreign national is reasonably expected to understand, except when it is formally considered to be materially impossible. The written statement will specifically mention the date of the notification of the decision; a declaration that the person has been duly informed of his or her rights; the language that the foreign national prefers to communicate in. The statement will be presented to the foreign national and signed by him or her. If s/he refuses to sign, it will be noted along with the reasons of their refusal. The statement will be transmitted to the minister with a copy to the foreign national. The foreign national does have the right to request, free of charge, the assistance of an interpreter.
Legal grounds for the length of detention
The length of detention is fixed to one month. Detention shall only be maintained as long as removal arrangements are in progress and executed with due diligence. The minister may extend it for three times, for one month at a time, if it is necessary to ensure removal. Where regardless of all reasonable efforts the removal operation is likely to last longer, owing to a lack of cooperation by the foreign national, or delays in obtaining the necessary documentation from the third country, the length of detention may be extended for a further two times, at one month each time. In total, the maximum time limit that any foreign national can be detained for stands at six months.
Legal grounds for the provision of health care, the scope of health care benefits and the provision of social services
The foreign national will be notified, in writing and with a return receipt, in a language s/he is reasonably supposed to understand, of his or her right to a medical examination within 24 hours of his or her entry into the detention centre. During their detention, foreign nationals have the right to necessary health care and essential treatment of illnesses. Care and treatment is free of charge, but dental treatments are limited to what is only essential and urgent.
Foreign nationals may take advantage of intellectual, artistic, cultural, educational, training, recreational and spiritual activities, under the conditions fixed by the director of the detention centre. Detainees have access to open air spaces within the facility, and have access to sports equipment that is provided by the facility. This access may be restricted for disciplinary measures. Even with such measures, the person has the right to at least one hour per day open-air activity. ‘
Legal grounds for contact with the outside world
Detainees shall be provided, in writing and with a return receipt, in a language s/he is reasonably supposed to understand, with information setting out his or her right to take contact with family or anyone else s/he chooses. A free telephone is placed at his or her disposal for this purpose.
Detainees may engage in free correspondence by post, telephone, fax or by email. Access to such means of communication may be restricted if there is serious evidence of a dangerous or illegal nature, or if there is a risk of absconding, or a risk to the safety of the detention centre. The exception to this potential restriction is with the detainee’s lawyers and medical doctors.
Detainees can receive visitors freely and without surveillance. Detainees may meet with ministers of their own religion, without surveillance. Religious representatives must be officially recognised by their competent religious authorities. The director of the centre fixes the time and place for such visits, which may be limited or suspended for security reasons.
Representatives of organisations recognised by the minister, and who support detained persons, may visit the centre within the limits and conditions fixed by the director of the centre.
Legal grounds for the provision of legal aid
The detainee shall be immediately informed of his or her right, in writing with a return receipt and in a language s/he is reasonably supposed to understand, to choose a lawyer from the Luxembourg Law Association, or to ask the chairman of the Association to designate a lawyer.
Legal grounds for the protection of persons with special needs
Particular attention must be made to the situation of vulnerable persons, such as minors, unaccompanied minors, disabled people, the elderly, pregnant women, single parents with minor children and persons subjected to torture, rape or other serious forms of psychological, physical and/or sexual violence.
Alternatives to detention
The minister may decide to impose a ‘mandatory residence’ upon a foreign national whose removal, even if it remains a reasonable prospect, is postponed for merely technical reasons, and who provides a sufficient guarantor that absconding will not occur. The decision of mandatory residence may be implemented for a maximum of six months. The foreign national who is obliged to stay at a fixed residence must also regularly report. The authorities hold the foreign national’s original travel documents. The decision of mandatory residence may be withdrawn if the foreign national does not comply with the conditions, or if s/he absconds.
Legal grounds for avoiding detention, especially for persons with special needs
If the foreign national proves the impossibility to comply with a return decision for reasons beyond his or her control, or if s/he cannot go back to the country of origin or any other country, the minister may postpone his or her removal for an indefinite period according to the circumstances of the case, and until a reasonable prospect of the implementation of the return decision has been reached. If given indefinite leave to remain, the foreign national may work in Luxembourg without a residence permit. The decision to postpone removal may be accompanied by a mandatory residence decision.
The foreign national will receive humanitarian aid during this period of indefinite leave to remain. Minors can access the basic educational system insofar as it is possible according to their length of stay. Family unity will be maintained as much as possible. The special needs of vulnerable persons – minors, elderly, pregnant women, unaccompanied minors, the disabled, single parents with minor children, persons subjected to rape, torture or other serious forms of physical, psychological and/or sexual violence – are to be considered. The person may be granted a work permit, at the discretion of the minister.
If the foreign national does not pose a risk to public policy or public security, s/he may not be removed if s/he can provide a medical certificate that s/he needs a certain level of medical care that cannot be received in the country s/he would be returned to. The certificate should also show that serious consequences could result if such care is not provided. In this case, the foreign national may have his or her removal order suspended for a maximum of six months, renewable for a maximum of two years.
Source: JRS Luxembourg
Last updated: 05/01/2012
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