European legal and policy framework on immigration detention of children 4.1. List of grounds under EU law The EU asylum acquis prohibits the detention of a person for the sole reason that he or she has lodged an asylum application129 or is subject to Dublin procedures,130 but allows detention under certain conditions. Article 8 (3) of the Reception Conditions Directive establishes an exhaustive list of situations (six grounds) when the detention of an applicant for international protection is permissible after an individual assessment of each case and if other, less coercive alternative measures cannot be applied effectively. The exhaustive grounds for asylum-related detention are: 1. to verify the applicant’s identity and nationality; 2. to determine an asylum claim where this would not otherwise be possible because of, in particular, a risk of absconding; 3. to decide on the applicant’s right to enter the territory; 4. to prepare for or to 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; 5. when the protection of national security or public order so requires; 6. to secure Dublin transfer procedures. The sixth situation is also mirrored in Article 28 of the Dublin Regulation, which repeats the obligation of the Member State to resort to detention only after an individual assessment of the case and if other, less coercive alternative measures cannot be applied effectively. There must be a significant risk of absconding, explicitly defined by national law, to make the Dublin transfer detention lawful. The CJEU has also emphasised that the drafting of the objective criteria defining the existence of a ‘risk of absconding’ is a matter of national law.131 In the context of detention pending return, Article 15 (1) of the Return Directive permits the detention of irregularly staying third-country nationals only if they are subject to return procedures. It is not permissible to detain an individual on the mere basis of irregular stay. The directive allows detention only to prepare the return or to carry out the removal process, in particular when there is a risk of absconding (based on objective 129 Reception Conditions Directive, Article 8 (1); Asylum Procedures Directive, Article 26. 130 Dublin Regulation, Article 28 (1). 131 CJEU, C-528/15, Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v. Salah Al Chodor and Others, 15 March 2017, para. 28. 42 criteria)132 or the person concerned avoids or hampers the preparation of the return or the removal process. The possibility of maintaining detention for public order reasons is not in the Return Directive. Therefore, Member States may not use detention for the purposes of removal as a form of ‘light imprisonment’.133 Although Article 2 (2) of the Return Directive allows Member States not to apply the directive if the irregular migrants are apprehended at the border and have not obtained authorisation to stay, Member States are still bound by their obligations related to deprivation of liberty under the EU Charter, Article 4 (4) of the Return Directive, the ECHR and other instruments of international human rights law (e.g. the ICCPR and the CRC). 4.2. List of grounds under the ECHR Article 5 (1) of the ECHR protects the right to liberty and security, with an exhaustive list of permissible exceptions. For deprivation of liberty not to be considered arbitrary, it must be in line with the permissible grounds for detention set out in Article 5 (1) (a)-(f). According to these, “no one shall be deprived of his liberty”, except in any of the following cases and in accordance with a procedure prescribed by law. Deprivation of liberty is permitted: • after conviction by a competent court; • for failure to comply with a court order or a specific obligation prescribed by law; • pending trial; • in specific situations concerning minors; • on public health grounds or because of vagrancy; • to prevent an unauthorised entry or to facilitate removal of an alien. If the detention cannot be based on any of these grounds, it is not permissible, the ECtHR held.134 Likewise, failure to identify clearly the precise purpose of detention may mean that the detention is unlawful. 132 See Article 3 (7) of the Return Directive defining the risk of absconding and setting out the precondition of laying down “objective criteria” in domestic law. 133 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, pp. 78–79. 134 ECtHR, Al-Jedda v. the United Kingdom [GC], No. 27021/08, 7 July 2011, para. 99.