Alternatives to detention for asylum seekers and people in return procedures
2.3. Selected European Union law on alternatives to detention
EU Law establishes specific limitations on the use of detention for asylum seekers and people
in return procedures. Deprivation of liberty must remain a measure of last resort in all
circumstances, while detention decisions must be based on individual assessments. Deprivation
of liberty is not allowed if other, less coercive measures would be sufficient to achieve the same
aim.
Legislation
Key text
Dublin Regulation
(EU) No 604/2013
Article 28 – Detention
2. When there is a significant risk of absconding, Member States may detain
the person concerned in order to secure transfer procedures in accordance
with this Regulation, on the basis of an individual assessment and only in so
far as detention is proportional and other less coercive alternative measures
cannot be applied effectively.
Asylum Procedures
Directive
2013/32/EU
Article 26 – Detention
1. Member States shall not hold a person in detention for the sole reason
that he or she is an applicant. The grounds for and conditions of detention
and the guarantees available to detained applicants shall be in accordance
with Directive 2013/33/EU.
Reception
Conditions Directive
2013/33/EU
Article 8 – Detention
2. When it proves necessary and on the basis of an individual assessment of
each case, Member States may detain an applicant, if other less coercive
alternative measures cannot be applied effectively.
4. Member States shall ensure that the rules concerning alternatives to
detention, such as regular reporting to the authorities, the deposit of a
financial guarantee, or an obligation to stay at an assigned place, are laid
down in national law.
Return Directive
2008/115/EC
Article 15 – Detention
1. Unless other sufficient but less coercive measures can be applied
effectively in a specific case, Member States may only keep in detention a
third-country national who is the subject of return procedures in order to
prepare the return and/or carry out the removal process, in particular when:
(a) there is a risk of absconding or
(b) the third-country national concerned avoids or hampers the preparation
of return or the removal process.
Any detention shall be for as short a period as possible and only maintained
as long as removal arrangements are in progress and executed with due
diligence.
Article 17 – Detention of minors and families
1. Unaccompanied minors and families with minors shall only be detained
as a measure of last resort and for the shortest appropriate period of time.
Return Handbook
Obligation to provide for alternatives to detention: Article 15(1) must be
interpreted as requiring each Member State to provide in its national
legislation for alternatives to detention; this is also consistent with the terms
of Recital 16 to the Directive ("..if application of less coercive measures
would not be sufficient"). In El Dridi, C-61/11, para 39, the [CJEU] confirmed:
"..it follows from recital 16 in the preamble to that directive and from the
14
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents