2. Necessity and proportionality
when deciding whether to detain a vulnerable person,
the possibility to cater for his or her specific needs
should be taken into consideration.
Legislation, case law or policy documents in a number of
countries expressly require those who order or prolong
an extension decision to give due weight to the personal
circumstances of the person concerned. These may
include a history of physical or mental health,110 a history
of torture,111 family,112 age and duration of residence,113
pregnancy,114 whether anyone is reliant on the person for
support115 as well as the character or the conduct of the
person116. In addition, domestic legislation may provide
for special safeguards for victims of human trafficking.
FRA Opinion
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.
110 See, for example, Estonia, Riigikohus/3-3-1-45-06 (13.11.2006),
paragraph 10; Estonia/Riigikohus/3-3-1-2-07 (22.03.2007), paras. 20-21,
Poland, where Article 103 Poland/Dz.U.03.128.1175 at 103; UK Border
Agency, Operational Enforcement Manual, at 55.3.1.
111 UK Border Agency, Operational Enforcement Manual, at 55.3.1.
112 Bulgaria, Law on Foreigners, at 44.2; Ireland, Immigration Act 1999,
Section 3(6) (c).
113 Ireland, Immigration Act 1999, Section 3(6) (a)-(b); Germany, General
Administrative Regulations to the Residence Act [Allgemeine
Verwaltungsvorschrift zum Aufenthaltsgesetz], 26 October 2009 at 62.0.5.
114 Germany, General Administrative Regulations to the Residence
Act [Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz],
26 October 2009 at 62.0.5.
115 UK Border Agency, Operational Enforcement Manual, at 55.3.1; Germany,
General Administrative Regulations to the Residence Act [Allgemeine
Verwaltungsvorschrift zum Aufenthaltsgesetz], 26 Oct. 2009 at 62.0.5 as
regards mothers under maternity protection.
116 Ireland, Immigration Act 1999, Section 3(6) (g).
29
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