European legal and policy framework on immigration detention of children Table 6: Grounds for detention of irregular migrants and asylum applicants in EU law and the ECHR EU law ECHR To decide on the asylum applicant’s right to enter the territory (Reception Conditions Directive, Article 8 (3) (c)) To prevent an unauthorised entry into the country (Article 5 (1) (f), first limb) To prepare the return of a migrant in an irregular situation (Return Directive, Article 15 (1)) To carry out the removal process of an irregular migrant (Return Directive, Article 15 (1)) To prepare or carry out removal under the Return Directive where there are reasonable grounds to believe that the asylum application was made solely to delay or frustrate the return process (Reception Conditions Directive, Article 8 (3) (d)) To facilitate the removal of an alien (Article 5 (1) (f), second limb) To secure Dublin transfer procedures (Reception Conditions Directive, Article 8 (3) (f), Dublin Regulation, Article 28 (2)) To determine or verify the asylum applicant’s identity or nationality (Reception Conditions Directive, Article 8 (3) (a))147 To determine an asylum claim where this would not otherwise be possible because of, in particular, a risk of absconding (Reception Conditions Directive, Article 8 (3) (b)) To protect national security or public order (Reception Conditions Directive, Article 8 (3) (e)) To secure the fulfilment of any obligation prescribed by law (Article 5 (1) (b) No grounds in the ECHR Source: FRA, 2017 prevent the commitment of an offence. The relationship of immigration detention grounds under EU law and the ECHR is illustrated in Table 6. Ø All grounds for detention in the Return Directive and five of the six grounds in the Reception Conditions Directive fall under Article 5 (1) (b) or Article  5  (1)  (f) of the ECHR. Detention to protect national security or public order in Article  8  (3)  (e) of the Reception Conditions Directive does not have a  corresponding basis in the ECHR.148 The lack of full harmony between the two legal regimes might lead to controversial situations when assessing individual Member States’ laws and policies on detention. 147 Some commentators argue that it is highly questionable whether this detention ground falls under the ambit of Article 5 (1) b) of the ECHR, owing to the fact that national legislations only accidentally impose an obligation on asylum applicants to provide documentary evidence of their identity and nationality (Matevžič, G. (2016), Detention of asylum-seekers under the scope of Article 5 (1) (f) of ECHR – some thoughts based on recent ECHR and CJEU jurisprudence). 148 It is also noted by De Bruycker, Ph. (ed.), (2015), Alternatives to Immigration and Asylum Detention in the EU. Time for Implementation, Final report of the MADE REAL Project, pp. 51-52. 44 For instance, in some Member States immigration detention of unaccompanied children who are seen as a serious threat to public order or national security is used as a punitive measure or to avoid the higher procedural safeguards applicable under juvenile justice in criminal law.149 In addition, in their national legislation on foreigners, some EU Member States provide other grounds not covered by Article 5 (1) (b) or Article 5 (1) (f) of the ECHR. For example, Lithuania has provisions to detain a person on the grounds of public health. According to the Aliens Act, a foreigner may be detained (1) “in order to stop the spread of dangerous and especially dangerous communicable diseases”; and (2) “when the alien’s stay in the Republic of Lithuania constitutes a threat to public security, public policy or public health.”150 149 E.g. in Greece (on this practice, see https://www. lerosnews.gr/1/2/ta-nea-tis-lerou/8316-leros-stakraththria-katelhxan-oi-tarachopoioi-toy-hotspot.html; or http://www.efsyn.gr/arthro/ratsistiko-menos-apoaganaktismenoys-katoikoys); see also the following domestic law provisions in the Czech Republic (Act on the Residence of Foreign Nationals, Article 124,); and in Germany (German Residence Act, Article 58a read in conjunction with Articles 62 (2) 1a and 62 (2)), stipulating that detention can be applied in case of well-founded suspicion of terrorism provided that deprivation of liberty is necessary to ensure the person’s removal). 150 Lithuania, Aliens Act, Section 113.1 6) and 7).