European legal and policy framework on immigration detention of children Figure 9: Conditions for necessity and proportionality Assessing necessity and proportionality respecting the best interests of the child: ü Detention is a measure of last resort ü Detention is for the shortest appropriate time ü Detention respects right to family life ü Detention facilities are equipped for children Source: FRA, 2017 This chapter builds on the standards developed by the ECtHR, many of which have been incorporated into secondary EU law. In spite of many parallels, however, the two legal systems differ in one important aspect: the requirement of a necessity test. Under EU law, any return- or asylum-related detention is subject to the principles of proportionality and necessity, which require an individual assessment of each case in line with the requirements of Article 8 (2) of the Reception Conditions Directive and Article 15 (1) of the Return Directive. In El Dridi, the CJEU clarified that the Return Directive requires weighing if the deprivation of liberty is proportionate to the objective pursued, and if other, less coercive measures can be applied effectively (necessity).156 The CJEU speaks of a gradation of measures “which goes from the measure which allows the person concerned the most liberty [���] to measures which restrict that liberty the most.157 In the light of the case law of the ECtHR, under Article 5 (1) (f) of the ECHR, there is no formal requirement for a necessity test to detain a person who tries to enter the country without authorisation or against whom action is being taken with a view to removal. States enjoy a  broader margin of discretion when detaining a person under these two migration-related grounds than for other interferences with the right to liberty set out in Article 5 of the ECHR, such as preventing an individual from committing an offence or fleeing.158 Notwithstanding this differentiation, the ECtHR has made it clear that, if a state’s domestic law requires 156 CJEU, C-61/11, El Dridi, alias Soufi Karim, 28 April 2011, paras. 29–62. See also European Commission (2015), Commission Recommendation of 1.10.2015 establishing a common “Return Handbook” to be used by Member States’ competent authorities when carrying out return related tasks, C(2015) 6250 final, Brussels, 1 October 2015, p. 78. 157 CJEU, C-61/11, El Dridi, alias Soufi Karim, 28 April 2011, para. 41. 158 ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 72. 48 the necessity of detention to be demonstrated, then there must be compliance with those national laws.159 In practice most safeguards that under EU law derive from the necessity test, such as the requirement that detention be a  last resort and last for the shortest appropriate time, also feature in the ECtHR case law as safeguards against arbitrary detention. However, the two systems differ to some extent. Unlike Article 15 (1) of the Return Directive, the ECtHR has so far refused to use the principles of proportionality and necessity in relation to the initial detention order.160 In the leading case on detention to prevent unauthorised entry (Saadi v. United Kingdom), the ECtHR held that Article 5 imposes no requirement to examine that “the detention of a person to prevent his effecting an unauthorised entry into the country be reasonably considered necessary.”161 This followed the line taken in Chalal with regard to pre-removal detention, in which it was held that additional bases for detention are not required: all that is required is that the person is detained with a view to deportation.162 However, subsequently, the ECtHR asserted that the duration of detention must not exceed the reasonable period required to achieve the aim.163 In addition, when assessing if migration-related detention is legal and not arbitrary, the ECtHR now looks at whether or not a less intrusive measure could have been imposed instead of detention.164 159 ECtHR, Rusu v. Austria, No. 34082/02, 2 October 2008, paras. 54–59. 160 Lutz, F. and Mananashvili, S., ‘Return Directive 2008/115/ EC’ in: Hailbronner, K. and Thym, D. (eds.) (2016), EU Immigration and Asylum Law: A Commentary, Munich/ Oxford/Baden-Baden: C.H.Beck/Hart/Nomos, second edition, p. 734. 161 ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 45. 162 ECtHR, Chahal v. United Kingdom [GC], No. 22414/93, 15 November 1996, para. 112. See also ECtHR, Rusu v. Austria, No. 34082/02, 2 October 2008, para. 52. 163 ECtHR, Louled Massoud v. Malta, No. 24340/08, 27 July 2010, para. 68. 164 Ibid, and later in ECtHR, Rahimi v. Greece, No. 8687/08, 5 April 2011, para. 109; Yoh-Ekale Mwanje v. Belgium, No. 10486/10, 20 December 2011, paras. 124–125.