1. Exhaustive list of grounds 1. Exhaustive list of grounds The ground for any deprivation of liberty must be set forth in law in a clear and exhaustive manner. This is required by both Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR)6 as well as Article 5.1 of the ECHR.7 To be lawful, detention to prevent unauthorised entry into the country or to facilitate removal must be provided for by national law. The legality of the deprivation of liberty of migrants pending their removal is normally not an issue: In all countries of the European Union, grounds allowing for detention are laid down in legislation, normally in national immigration or aliens acts. Lists of grounds are generally laid down in national legislation in an exhaustive manner.8 1.1. Legitimate grounds European Convention on Human Rights Article 5.1 (f) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […] (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Grounds must, however, not only be exhaustively listed in national legislation. They must also be legitimate, for the deprivation of liberty not to be arbitrary. While the ICCPR does not contain a list of grounds, Article 5.1 of the ECHR allows deprivation of liberty on six grounds only. Such list is exhaustive and has to be interpreted restrictively.9 According to it, deprivation of liberty can only be resorted to: • for certain social protection grounds relating to vulnerable groups; • for the prevention of irregular entry or to facilitate removal. It is this latter ground, which is laid down in Article 5.1(f ) that sets the frame for the deprivation of liberty covered by this report. More specifically, Article 5.1(f ) allows for the deprivation of liberty of a person either: • t o prevent his effecting an unauthorised entry into the country; or • against whom action is being taken with a view to deportation or extradition. In order to comply with the ECHR, it must be possible to subsume the grounds foreseen in national law to justify pre-entry or pre-removal detention under one of the two limbs of Article 5.1(f ). Otherwise, national law would be in contradiction with the ECHR. More stringent safeguards are namely required for pre-trial or other forms of deprivation of liberty foreseen in Article 5.1(a)–(e).10 In European Union law, deprivation of liberty falling under the scope of Article 5.1(f ) of the ECHR is essentially regulated in the asylum acquis11 and in the Return Directive. Article 15.1 of the Return Directive, only allows the detention of third-country nationals who are “subject of return procedures”. Deprivation of liberty is permitted for two reasons: (i) “in order to prepare return” and (ii) “to carry out the removal process”, in particular when there is risk of absconding or of other serious interferences with the return or removal process. These reasons fall under the grounds included in Article 5.1(f ) of the ECHR. • a fter conviction by a competent court; • for failure to comply with a specific obligation prescribed by law; • pending trial; • in specific situations concerning minors; 6 See second sentence: “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” 7 “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” 8 Example of exhaustive lists of ground for detention can be found in Article 113 of the Lithuanian Law on the Legal Status of Aliens (Aliens Act) or Article 121 of the Finnish Aliens Act (Aliens Act). 9 See ECtHR, Ciulla v. Italy, No. 11152/84, 22 February 2002, at paragraph 41; and ECtHR, Wloch v. Poland, No. 27785/95, 19 October 2000, at paragraph 108. 10 See below at 1.3. 11 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status at Article 18 and Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, at Recital 10 and Articles 6.2, 13.2 and 14.8. See also Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, Recast, COM(2008) 820 at Section V. 15