1. Exhaustive list of grounds
As illustrated above, there is considerable diversity on
how grounds for detention are reflected in national laws.
While in general terms the different grounds reviewed
can all be linked in one way or another to Article 5.1(f )
ECHR, the wording sometimes used does not necessarily
imply that the deprivation of liberty is resorted to in order
to prepare the return or implement removal. This is in
particular the case when irregular entry or stay constitutes
a ground for detention.
FRA Opinion
Grounds for pre-removal detention must be
exhaustively listed in national legislation and defined
in a clear manner. The simple fact of being an irregular
migrant should never be considered as a sufficient
ground for detention.
1.3. Grounds not covered by
Article 5.1(f) ECHR
Court of Justice of the European Union
Kadzoev, 2009, paragraph 70
The possibility of detaining a person on grounds of
public order and public safety cannot be based on
Directive 2008/115 [the Return Directive].
The European Court of Human Rights (ECtHR) held
that the lawfulness of detention also implies that the
deprivation of liberty is in keeping with the purpose
of the restrictions permissible under Article 5.1 of
the Convention.39 Article 5.1(f ) ECHR allows for the
deprivation of liberty of a person either to prevent
his effecting an unauthorised entry into the country
or against whom action is being taken with a view
to deportation or extradition. Detention of nonnationals on other grounds, such as crime prevention,
public health or vagrancy, is not admissible under
this provision of the Convention. Stricter safeguards
need to be fulfilled to justify detention on criminal
grounds;40 whereas detention for reasons of public
health is allowed only as a last resort for diseases, which
spreading is dangerous for public health or safety.41
It should also be recalled that national security or public
order are per se not sufficient to justify a deprivation of
39 ECtHR, Bouamar v. Belgium, No. 9106/80, 29 February 1988, at 50.
40 Article 5.1(a) requires a conviction by a competent court, whereas
Article 5.1(c) on the arrest of a person suspected to have committed
a crime in order to bring him/her before a court necessitates a
‘reasonableness’ test, which would require “the existence of some
facts or information which would satisfy an objective observer that
the person concerned may have committed the offence”, ECtHR, Fox,
Campbell and Hartley v. the United Kingdom, Nos. 12244/86, 12245/86
and 12383/86, 30 August 1990, paragraph 32.
41 See ECtHR, Enhorn v. Sweden, No. 56529/00, 25 January 2005, paragraph 44.
liberty, which, according to the Convention, has to be
based on one of the exhaustive grounds foreseen in
Article 5.1 and formulated in a clear manner.
Similarly, the Return Directive only allows for detention of
an irregular migrant in order to prepare the return and/
or in order to carry out the removal process. It provides
two circumstances – risk of absconding and other actions
by the person concerned which avoids or hampers
the return or removal process – which illustrate when
deprivation of liberty can be resorted to.42
In a number of countries, however, alien legislation is
used as a basis to provide for the detention of thirdcountry nationals also for public health, public order or
national security reasons or when there is a risk that the
persons concerned may commit a crime. Based on a
review of national legislative provisions accessible to the
Agency, several countries contain in their immigration
or aliens laws references to public health, public order or
national security considerations.
In a first group of countries, these considerations describe
in greater detail circumstances in which detention for
the purpose of removal is allowed. In the Czech Republic,
aliens in return or removal proceedings can be detained in
three different situations, including if there is a risk that the
person might endanger the security of the state or might
materially disrupt public order. This includes, for example,
situations in which the foreigner might endanger state
security by using violence for political aims or situations
in which the foreigner endangers public health, due to
his/her suffering from a serious disease.43 In Finland, an
alien may be detained to prevent his/her entry or facilitate
removal, if taking account of the alien’s personal and other
circumstances, there are reasonable grounds to believe
that he or she will commit an offence in Finland.44 In
Greece, the provision on administrative expulsion allows
detention of an alien considered dangerous for the public
order.45 In Germany, detention can be applied in case
of well-founded suspicion of terrorism, although only if
the deprivation of liberty is necessary to ensure his/her
removal.46 In Hungary, detention to secure expulsion is
admissible in case the third-country national has seriously
or repeatedly violated the code of conduct of the place of
compulsory confinement.47
In a second group of countries, public health, public
order or national security considerations seem to justify
detention regardless of whether action is being taken
42 Return Directive, Article 15.1.
43 Act No. 326/1999 on the Residence of Foreign Nationals in the Territory of
the Czech Republic; Section 124 (1).
44 Aliens Act, Section 121.1 read in conjunction with Section 118.
45 TCN Act at Article 76.3.
46 German Residence Act, Section 58a read in conjunction with Section
62(2)1a and 62(2).
47 TCN Act, Section 54.1(c).
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