Detention of third-country nationals in return procedures
2.3. Due diligence in preparing and
implementing removal
Return Directive
Article 15.1
[��] Any detention shall […] only [be] maintained as
long as removal arrangements are in progress and
executed with due diligence.
In order for the deprivation of liberty of an irregular
migrant to be in accordance with Article 5.1(f ) ECHR,
the person concerned must be the object of action to
prevent unauthorized entry or “with a view to deportation
or extradition”. In other words, the authorities need to
initiate and implement removal proceedings and do
this with due diligence. In Chahal v. UK, the European
Court of Human Rights held that detention to prevent
unauthorised entry or to facilitate removal “will be
justified only for as long as deportation proceedings are
in progress. If such proceedings are not carried out with
due diligence, the detention will cease to be permissible
under Article 5 paragraph 1(f )”.72 It will become arbitrary.
An assessment of whether all reasonable measures have
been taken by the authorities to prepare and execute the
removal of a person is an important factor when reviewing
the length of detention. Such consideration could
however also be relevant when taking the initial detention
decision. If the administration has no intention to initiate
removal arrangements (for instance, due to the absence of
means of transportation to a particular country), it would
be difficult to imagine how the deprivation of liberty
could be considered necessary to effect the removal.
The need to initiate and implement the removal with
due diligence is also recognised by the Return Directive.
Article 15.1 of the Directive stresses that any detention
shall only be maintained as long as removal arrangements
are in progress and executed with due diligence.
At a national level, such requirement is sometimes set
forth in legislation. This is, for example, the case in Belgium,
where the administration can decide to prolong the
detention beyond two months only when the necessary
preparatory work to implement the removal has been
undertaken within a delay of seven days from the detention
and when it has been pursued with due diligence.73
More often, however, this requirement has been
highlighted by courts, primarily when reviewing the
72 ECtHR, Chahal v. UK, No. 70/1995/576/662, 15 November 1996,
paragraph 113. See also ECtHR, Tabesh v. Greece, No. 8256/07,
26 November 2009, paragraph 56.
73 Law on Foreigners, Article 7.11.
24
length of detention. In Austria, for example, detention
may only last for as long as there is a real possibility of
affecting the return within the maximum time limit
allowed by law. If, from the very beginning, there is no
real chance of affecting the return within this limit, the
detention would be unjustified.74 In Denmark, when
assessing the duration of the deprivation of liberty, the
courts apply ordinary considerations of proportionality
and take into account, among other things, whether
the return proceedings are progressing.75 The French
Constitutional Council allowed an extension of detention
only if the repatriation measure taken against him/
her could not be executed “despite the diligence of the
Administration”, because of a faulty delivery or delayed
delivery of the travel documents by his/her consulate
or by the lack of transportation.76 In Luxembourg, the
administrative tribunals order the release when they
consider that the administration has not taken all steps
necessary for removal.77 In the UK, in the case of Hardial
Singh, the High Court (England and Wales) ordered the
applicant’s release, finding that the Home Office had not
taken the action it should have taken and nor had it taken
that action sufficiently promptly. It required the Secretary
of State to “exercise all reasonable expedition to ensure
that the steps are taken which will be necessary to ensure
the removal of the individual within a reasonable time”.78
In Germany, the principle of expedience
(Beschleunigungsgrundsatz) obliges the administration
to take all possible measures not to unduly prolong a
deprivation of liberty.79 Detention is only justified for as
long as meaningful measures to prepare the removal are
taken.80 The following two cases provide an illustration
of this principle in practice. The Higher Regional Court
(Oberlandesgericht) in Karslruhe rejected the extension
of detention in a case where the authorities waited for
three weeks before contacting the administration of the
detainee’s home country.81 Similarly, the Higher Regional
74 See, for example, rulings by the Constitutional Court
[Verfassungsgerichtshof – VfGH] 5.12.1994, B 1075/94, B 1274/94; and the
Highest Administrative Court [Verwaltungsgerichtshof VwGH] 26.9.2007,
2007/21/0253; 23.10.2008, 2006/21/0128; 18.12.2008, 2008/21/0582.
75 Denmark/Rigspolitiets Udlændingeafdeling, Det retlige grundlag
for politiets udsendelsesarbejde i asylsager og politiets praktiske
udsendelsesarbejde, 2009 [The legal foundation for return procedures
and the practical return measures of the police], p. 10. (Available in
Danish at: http://www.politi.dk/NR/rdonlyres/81FB7CD9-47F7-4658-8D2852C4EF0D327B/0/Bilag1Detretligegrundlagapril.pdf ).
76 France/Conseil Constitutionnel, 2003-484 (20.11.2003), p. 438, available
online: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/
francais/les-decisions/depuis-1958/decisions-par-date/2003/2003-484dc/decision-n-2003-484-dc-du-20-novembre-2003.871.html.
77 Luxembourg, Question parlementaire N° 3071 (12.01.2009), see reply to
question relating to Dublin II.
78
R v. Governor of Durham Prison ex p. Hardial Singh [1983] Imm AR 198, p.202.
79 German Constitutional Court [Bundesverfassungsgericht],
Entscheidungen, decision number 2 BvR 66/ 00 from 3 February 2000
(BVerfGE) 61, pp. 28 and 34f.
80 See General Administrative Regulations to the Residence Act (Allgemeine
Verwaltungsvorschrift zum Aufenthaltsgesetz), 26 October 2009 at 62.0.2.
81 Germany/Oberlandesgericht [Higher Regional Court] Karlsruhe, decision of
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