2. Necessity and proportionality Limited or no room for weighing of the competing interests of the state and the individual is available in other countries. This concerns first of all those cases in which there is no margin of discretion given to the administration of whether to order detention or not.64 In addition, some countries which allow for a relatively short maximum period of detention tend not to include personal circumstances or risk of absconding among the factors to consider when ordering or continuing detention, but focus their assessment on the likelihood of removal during the timeframe foreseen for detention.65 No express reference to the necessity to balance the interest of the state with those of the individual was found to exist in a third group of countries, where the prevention of arbitrary detention seem to rest primarily on stating clear grounds for detention and prohibiting it under certain circumstances.66 2.2. Mandatory detention Return Directive Recital 6 According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. Decisions to detain irregular migrants should not be taken without assessing if such a measure is necessary to ensure successful removal in the individual case. The Return Directive provides that “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” (Article 15.1). Furthermore, detention “shall be maintained for as long as […] it is necessary to ensure successful removal” (Article 15.5). Reading such provisions in light of Recital 6 of the Directive, which requires that decisions be adopted 64 Maltese Immigration Act at 14.2; Italy, LD 286/98, Article 14. 65 This is the case of France, where the judge must determine if the arrest was lawful, whether the removal can be executed during the time of detention and whether the police implements the expulsion with due diligence. In Spain, the main requirement is that detention order must be proportionate to the time required to carry out the removal (Article 62.2 of the Law 4/2000). 66 This seems to be the case in Poland, where Article 103 Act on Aliens forbids detention when it can cause a threat to irregular immigrant’s life or health and Art. 107.1(2) and (3) orders to release a person where the deprivation of liberty can cause a threat to his/her life or health or where there are other circumstances making the detention impossible; and in Slovakia where Articles 62.3 and 63 of the Aliens Act No 48/2002 do not allow an extension of detention in case of family with children or persons otherwise vulnerable. No evidence of the need to balance the interests of the state and those of the individual were found in Hungary and Romania. on a case-by-case basis, national law provisions which establish a duty on the administration to detain appear problematic. Legislation in four countries suggests that limited or no room of discretion is given to the administration when ordering detention. In Estonia, the text of the law required that from the moment that certain conditions are fulfilled, the administration “shall detain the alien and organise the aliens’ departure from Estonia”.67 In 2006, the Supreme Court, however, clarified that detention is a discretionary measure which cannot be applied automatically.68 The Maltese Immigration Act provides in Article 14.2 that a person against whom a removal order is made “shall be detained in custody until he is removed from Malta”. Moreover, the law forbids the Immigration Appeals Board to release such a person, in case of certain circumstances such as the need to verify identity, or where the person poses a threat to national security or public order.69 In practice, this results in a situation of systematic detention for irregular migrants in Malta, as these are in most cases undocumented and their identity not established.70 In Italy, the law does not explicitly provide for a margin of discretion by the authorities. As soon as the circumstances listed in the law are fulfilled, detention has to be ordered.71 In Poland, Article 102 provides that an alien shall be detained if it is necessary to ensure the effectiveness of the expulsion proceedings, there is a wellfounded risk of absconding or entry was irregular. FRA Opinion 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. 67 Article 15.1, OLPEA. 68 See Estonia, Riigikohus, 3-3-1-45-06 of 13 November 2006, paragraph 10. 69 Maltese Immigration Act Article 25A.11. 70 UN Working Group on Arbitrary Detention, see UNDOC A/HRC/13/30/ Add.2; Human Rights Council, 13th session, Report of the Working Group on Arbitrary Detention, Mission to Malta, 19-23 January 2009. 71 See Article 14 LD 286/98. In practice, the absence of capacity in detention facilities for irregular migrants gives a certain margin of discretion to the authorities. If there is a space problem in the detention facility, a five days voluntary return period is granted. Once this period has expired and the alien did not depart voluntarily, he/she is likely to be detained. 23