Opinions Opinions Exhaustive list of grounds Grounds for pre-removal detention must be exhaustively listed in national legislation and defined in a clear manner. The simple fact of being an irregular migrant should never be considered as a sufficient ground for detention. European Union Member States should ensure that grounds for detention established at a national level do not extend beyond the exhaustive list of legitimate grounds foreseen in Article 5.1 of the European Convention on Human Rights (ECHR). Deprivation of liberty based on crime prevention, public health considerations or vagrancy should be governed by the same rules, regardless of the legal status the person concerned has in the host country. These grounds should therefore not be regulated by aliens or immigration laws but by other pieces of legislation. Otherwise, there is a risk that this will lead to the application of different standards based on the legal status of the person in the country. Necessity and proportionality Any instance of mandatory detention for irregular migrants should be abolished as it would be in contradiction with the requirement to examine whether less coercive measures can be applied in the specific case or whether detention is necessary in the first place. To avoid situations that may be in conflict with the requirements of Article 5.1 ECHR as interpreted by the European Court of Human Rights (ECtHR), as well as with Article 15.1 of the Return Directive, EU Member States should consider including in domestic law the need to initiate and carry out the return and removal process with due diligence in order for the deprivation of liberty to be lawful. Pre-removal detention is not lawful in the absence of realistic prospects for removal. It would normally be up to the administration and the courts to decide when this is the case. In order to prevent prolonged detention, legislators may, however, consider introducing presumptions against pre-removal detention for de facto stateless persons, where it is evident from past experience that the country of nationality will refuse any cooperation in establishing the citizenship and issuing related travel documents. EU Member States are encouraged, when reviewing their aliens or immigration laws, to establish mechanisms to avoid situations of legal limbo by acknowledging the presence in the country of persons who are not removable and ensuring that they enjoy applicable fundamental rights. Furthermore, it would be important to start a reflection at European level to identify ways to put an end to protracted situations of legal limbo. Such reflection should not have the effect of rewarding lack of collaboration, but create legal certainty and respect fundamental rights. Pre-removal detention should essentially only be resorted to if there is a risk of absconding or of other serious interference with the return or removal process, such as interference with evidence or destruction of documents. EU Member States may consider making this explicit when reviewing their national legislation. The FRA welcomes domestic law provisions existing in some EU Member States that require the authorities to take into account the individual characteristics of the person concerned when deciding if a person should be detained, and encourages others to follow this example. Such provisions can help to ensure that particular caution is taken before depriving the liberty of particularly vulnerable persons or persons with specific needs and that alternatives to detention are duly considered. Maximum length of detention The FRA encourages EU Member States not to extend the maximum periods of detention beyond six months. Where – in line with the Return Directive – such a possibility is introduced or maintained, national legislation should include strict safeguards to ensure that such a possibility is only used in extremely exceptional cases. A delay in obtaining necessary documentation should not justify an extension of deprivation of liberty, if it is clear from the outset that the third country concerned will not collaborate or where there are no reasonable expectations that the necessary documents will be issued in time as in such cases, detention would not anymore pursue the legitimate objective of facilitating the removal. The six-month and very exceptionally 18-month period set forth in the Return Directive has to be seen as a ceiling. Given the interference that detention has on personal dignity, it is of utmost importance to regulate in national legislation that detention shall be ordered or maintained only for as long as it is strictly necessary to ensure successful removal. National legislation should be drafted in a manner so as to ensure that the individual circumstances of the person concerned are evaluated in each case, thus making the systematic application of the maximum time limit for detention unlawful. 9