Introduction Introduction The 2009 Work Programme of the European Union Agency for Fundamental Rights (FRA) includes a project on the rights of irregular immigrants in voluntary and involuntary return procedures. The FRA has been asked to examine existing legislation and practice in light of the standards set forth in the Return Directive. A number of fundamental rights issues relating to the treatment of persons to be removed from the territory of European Union Member States will be analysed as part of this project. The first issue that the FRA has looked at is deprivation of liberty of irregular migrants1 pending return, which is dealt with in this report. The report examines the practice of states in the 27 European Union Member States in light of the relevant international human rights law framework (primarily the 1966 International Covenant on Civil and Political Rights and, for children, the 1989 Convention on the Rights of the Child), and the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights (ECtHR). In addition, significant soft law documents such as, for example, the Council of Europe Twenty Guidelines on Forced Return as well as relevant statements by United Nations (UN) Treaty Bodies and by the UN Working Group on Arbitrary Detention have also been used as guidance. Detention and deprivation of liberty are used as synonyms in this report. They encompass all different forms of deprivation of liberty of non-nationals of the European Union (including stateless persons) with a view to facilitating their removal, regardless of how such measures are defined in national law. They include, for instance, the French term rétention, or the restriction of movement provided for in Article 56 of the Slovenian Aliens Act which, although not termed as deprivation of liberty in domestic law, in practice is tantamount to detention.2 Detention has to be distinguished from restriction on the right to freedom of movement, although the difference is essentially one of degree or intensity, and not one of nature or substance, as the European Court of Human Rights has clarified.3 A person is not deprived of liberty in case of residence restrictions, unless these are so serious 1 This report uses the term ‘irregular migrant’ as a synonym of ‘illegally staying third-country nationals’, as defined in Article 3.1(2) of the Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member Status for returning illegally staying third-country nationals (Return Directive). 2 See 12th Annual Report by the Slovenian Human Rights Ombudsmen, July 2007, p. 37, available online at: http://www.varuh-rs.si/ fileadmin/user_upload/pdf/lp/Varuh_LP_2006_ANG.pdf (all hyperlinks in this document have been accessed on 24 August 2010). 3 European Court of Human Rights (ECtHR), Guzzardi v. Italy, No. 7367/76, 6 November 1980, paragraph 93. to be considered as tantamount to detention. This would be the case of persons held in airport transit zones, who, although having in theory the possibility to leave the country, must be considered as having been deprived of their liberty.4 It is important to note that detention of asylum seekers is not covered by this report. The report focuses primarily on pre-removal detention to facilitate removal of thirdcountry nationals who find themselves already in the territory of the European Union, although references to deprivation of liberty at entry points such as, for instance, confinement at an airport, to prevent unauthorised entry, is touched upon in selected sections. Detention of persons whose removal has been ordered by a court in the context of criminal proceedings is also not covered in this report. Neither does the report cover the conditions in facilities used for pre-removal detention, except where these are directly linked to the question of whether detention is arbitrary or not. Regarding children, this report complements the research recently issued by the FRA on Separated asylum-seeking children in European Union Member States, the summary report of which was published in April 2010.5 Information on national legislation and practice was collected by the FRA from national legal experts. The draft report was shared for comments with Member States representatives in the Return Directive Contact Committee. Fourteen countries provided feedback, including Austria, Belgium, the Czech Republic, Germany, Ireland, Latvia, Lithuania, Malta, the Netherlands, Poland, Slovakia, Slovenia, Sweden and the UK. In addition, comments on the draft were received from the European Court of Human Rights, the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Children’s Fund (UNICEF), as well as from the International Detention Coalition, the Jesuit Refugee Service Europe and Save the Children. 4  See ECtHR, Amuur v. France, No. 19776/92, 25 June 1996, at paragraph 49. The Court concluded that holding asylum seekers in the transit zone of Paris-Orly Airport (and its extension, the floor of the Hotel Arcade adapted for this purpose) for twenty days was equivalent to a deprivation of liberty, although it was in principle possible for the asylum seekers to leave voluntarily the country. 5 FRA, Separated asylum-seeking children in European Union Member States – Summary report, Luxembourg: Publications Office of the European Union, April 2010, available online at: fra.europa.eu/fraWebsite/ attachments/SEPAC-SUMMARY-REPORT-conference-edition_en.pdf. 13