Assessing necessity and proportionality
5.1. Last resort and
alternatives to detention
The first requirement when assessing necessity and
proportionality is that deprivation of liberty is resorted
to only when no other, less intrusive measures are
suitable. European and international law specifically
establish that the detention of children in the migration context needs to be a last resort. As a result,
EU Member States have a positive obligation to first
explore and implement less coercive measures.
Essentially, this requires a three-step process, which is
illustrated in Figure 10.
1. EU Member States should implement measures that
fully respect the rights of the child to protection and
care, such as unrestricted placement in a reception
or other open arrangement, with the necessary support to guarantee the child’s well-being.
2. If restrictions to fundamental rights – usually the
right to liberty – are necessary, alternatives to detention, such as reporting requirements or designated
residence possibly combined with tailored case
management, should be applied, giving priority to
alternatives that are most effective.
3. Only if the purpose cannot be achieved by imposing
alternative measures should deprivation of liberty be
considered.
The absence of alternatives to detention in national
legislation or policy cannot be used as an excuse
for resorting to detention in the individual case (see
Chapter 1).
Alternatives to detention include a wide array of
measures. Most of them restrict freedom of movement.165 Minimum rules for the administration of juvenile justice166 and non-custodial measures167 have been
developed in the context of the UN to promote the creation of adequate juvenile justice systems. The rules are
largely also relevant to immigration detention.
Figure 10: Logical steps to assess if detention is a last resort
No restrictions
necessary
Restriction of
fundamental rights
is effective
Deprivation of
liberty as a last
resort
Source: FRA, 2017
165 For more information see FRA (2010), Detention of third
country nationals in return procedures, Luxembourg,
Publications Office. EMN (2014), The use of detention and
alternatives to detention in the context of immigration
policies.
166 UN, General Assembly, Resolution 40/33, UN Standard Rules
for the Administration of Juvenile Justice (The Beijing Rules),
29 November 1985, A/RES/40/33.
167 UN, General Assembly, Resolution 45/110, UN Minimum
Rules for Non-custodial Measures (The Tokyo Rules),
14 December 1990, A/RES/45/110.
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