Assessing necessity and proportionality Figure 13: Maximum length of pre-removal detention, comparison 2010-2017, 27 EU Member States 25 20 15 10 5 0 FR ES IE PT IT LU BE AT FI HU SE BG CY CZ DE DK EE EL HR LT LV MT NL PL RO SI SK Maximum length of detention in months 2010 Maximum length of detention in months 2016 Notes: Croatia, Cyprus, Denmark, Estonia, Finland, Lithuania, Malta, Sweden and the United Kingdom had no maximum length of detention in 2010. Lengths of detention expressed in days or weeks in national legislation are provided in months in the graph. In Cyprus ‘prohibited immigrants’ can be detained for up to three years under the Aliens and Immigration Law, Ο περί Αλλοδαπών και Μεταναστεύσεως Νόμος (ΚΕΦ.105), Article 19 (2). Source: FRA, 2017 (based on national legislation) The national laws of all EU Member States bound by the Return Directive, as well as Ireland (that is not bound by it),219 give maximum time limits for detention pending removal. The United Kingdom – which does not apply the Return Directive – is the only Member State that does not have a maximum time limit (Figure 13).220 Some Member States also have upper time limits for asylum detention, which are usually, but not always, shorter than for persons in return procedures. For example, in Italy, asylum detention can last for a maximum of 12 months (compared with 18 months for detention pending return), in Luxembourg for 12 months (compared with five months for pre-removal detention) and in Slovenia for three months, extendable to a maximum of 219 Ireland, Section 5 of the Immigration Act 1999 (as amended) provides that if persons fail to comply with any aspect of the deportation order, they may be arrested and detained pending removal. This provision does not apply to children. The period for such detention is 8 weeks in total. Section 78 of the International Protection Act 2015 amends section 5 of the Immigration Act 1999 to permit the detention period of 8 weeks to be extended beyond then by a District Court judge (Section 5 (9) (b)). Section 78 of the International Protection Act 2015 was commenced by the International Protection Act 2015 (Commencement) (No. 2) Order 2016 (S.I. No. 133 of 2016) in March 2016. 220 For instance, see The Report of the Inquiry into the Use of Immigration detention in the United Kingdom: A Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, in which it is suggested that a maximum time limit of 28 days should be set for immigration-related detention. four months (compared with 18 months for pre-removal detention).221 Figure 13 shows that 9 EU Member States have extended the maximum length of detention. Two Member States have reduced it to be compatible with the 18 months limit set in the Return Directive. Nine EU Member States did not have any limit in 2010 and all but one (the United Kingdom) have subsequently set a maximum length of detention pending return. As of April 2017, eight Member States use a lower ceiling than EU law allows, although Austria plans to increase it.222 Sixteen EU Member States apply the maximum limit of preremoval detention of 18 months set out in the Return Directive and three (Hungary, Finland and Sweden) apply the 12-month ceiling set by Article 15 (5) of the Return Directive. 221 Italy, Decreto Legislativo 142/2015, Legislative Decree 142/2015 “Implementation of Directive 2013/33/EU on standards for the reception of asylum applicants and the Directive 2013/32/EU on common procedures for the recognition and revocation of the status of international protection,” 18 August 2015, Article 6 (8); Luxembourg, Loi du 18 décembre 2015 relative à la protection internationale et à la protection temporaire; Recueil de Législation, A –– N° 255, 28 décembre 2015, Article 22 (4); Slovenia, International Protection Act, (Zakon o mednarodni zaščiti), Article 51 (3). 222 Austria, Government Programm, Arbeitsprogramm der Bundesregierung 2017/2018, January 2017, p. 29. 59