5. Alternatives to detention Australia Case management in the community as an alternative to detention292 Over the past three years a number of alternatives to detention were piloted in Australia. Release or placement in the community is combined with the introduction of case managers that work within enforcement authorities who make a case-by-case risk assessment of the need to detain. The case manager prepares and supports the migrant throughout the immigration process, helping him/her understand and cope with the often limited options available. The person concerned is thus assisted in making informed decisions. Independent legal advice, welfare assistance and the active involvement of community organisations in partnership with the government have also been key elements. On average, 94% of people within the programmes complied with their reporting requirements and did not abscond. Some 67% of those not granted a visa to remain in the country voluntarily departed.293 In addition, 3 years following the release of all families from detention centres, less than 1% had absconded, with no other reported violation of conditions.294 Furthermore, the use of alternatives to detention has also proved a cost saving to government, at onethird the cost of traditional detention and removal practices.295 FRA Opinion EU Member States, which have not yet done so, are encouraged to set out in national legislation rules dealing with alternatives to detention, without disproportionately restricting other fundamental rights. Innovative forms of alternatives which include counselling the individual on the immigration outcome should be explored wherever possible. By contrast, given the restrictions on fundamental rights derived from electronic tagging, such an alternative should normally be avoided. 292 293 294 295 292 See, for more details, an overview of these initiatives provided by the International Detention Coalition, Detention reform and alternatives in Australia, Case management in the community as an alternative to detention, the Australian Experience, June 2009 available at: http:// idcoalition.org/wp-content/uploads/2010/02/a2daustraliabrief1feb2010.pdf. 293 Department for Immigration and Citizenship, Final Activity Report, October 2008, pp. 11-12. Department for Immigration and Citizenship CCP Report, March 2009 at, p. 2. 294 Department for Immigration and Citizenship, Submission to the Joint Commission on Migration Inquiry in Immigration Detention Sub 129c, Q41, October 2008. 295 See http://www.aph.gov.au/senate/committee/legcon_ctte/estimates/ add_0809/diac/38.pdf. 5.2. Duty to examine alternatives before detaining Return Directive Recital 16 Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. In interpreting the prohibition of arbitrary detention contained in Article 9.1 ICCPR the Human Rights Committee observed that deprivation of liberty cannot be considered as necessary, if the possibility to apply invasive means to achieve the same ends does not exist.296 The Council of Europe Twenty Guidelines on Forced Return indicate at Guideline 6.1 that detention should only be resorted to after the authorities have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures. Building on this Guideline, the Return Directive stipulates at Article 15.1 that deprivation of liberty may be ordered “unless other sufficient but less coercive measures can be applied effectively in a specific case”. Read in conjunction with Recital 16 (quoted in the above box), Article 15.1 establishes a duty to examine in each individual case whether alternatives to detention would suffice before resorting to deprivation of liberty. This is an area where the standard set forth in the Return Directive is higher compared to what takes place currently in practice. Except for those countries which require an individualised test to verify if the deprivation of liberty is proportional to the removal objective, the requirement to review alternatives first, before resorting to detention, is not that common and mainly concerns categories of persons deemed to be particularly vulnerable, such as, for instance, children. As the following examples illustrate, the duty to examine alternatives first can either be based in law or, more frequently derive from case law. In Austria, the administration is obliged to apply more lenient measures in all cases where deprivation of liberty is not necessary to achieve the purpose. The reasons why these measures could not be applied have to be stated in the detention decision.297 Similar duties to examine the viability of alternatives before detaining can be found in Germany,298 296 UN Human Rights Committee, Communication No. 900/1999, C.v. Australia at 8.2. 297 See, for example, the following judgements by the Austrian Higher Administrative Court: 30 August 2007, 2007/21/0043; 17 March 2009, 2007/21/0542; 25 March 2010, 2009/21/0276 available online at: http://www.ris.bka.gv.at/Vwgh. 298 See the evaluation of the immigration legislation by the German Ministry of Interior, Bericht zur Evaluierung des Gesetzes zur 53