Detention of third-country nationals in return procedures
by the authorities to remove the person concerned
or not. Such grounds are clearly not foreseen in the
Return Directive, nor are they covered by Article 5.1(f )
of the ECHR. In Latvia, for instance, the fact of being
an irregular migrant is per se one of the grounds for
detention. When courts are asked to decide on a
possible extension of detention they have to consider
a number of circumstances, including risk of criminal
behaviour and threats to national security public order
and safety.48 In Lithuania, an alien may be detained (i)
in order to stop the spread of dangerous and especially
dangerous communicable diseases; (ii) when the alien’s
stay in the Republic of Lithuania constitutes a threat to
public security, public policy or public health.49 In Malta,
prohibited immigrants, against whom a removal order
has been issued, shall be detained and may not be
released by the Immigration Appeals Board if they could
pose a threat to public security or public order.50
48 2007 Immigration Law, Section 51.1 and 54.1 (points 4 -7).
49 Aliens Act, Article 113.1 at (6) and (7).
50 Maltese Immigration Act, Articles 14.2 and 25A.11 (c). The Maltese Ministry
for Justice and Home Affairs informed the FRA that if a removal order is
issued detention is mandatory, as it is considered necessary in order to
prevent the person from absconding.
20
FRA Opinion
EU Member States should ensure that grounds for
detention established at a national level do not
extend beyond the exhaustive list of legitimate
grounds foreseen in Article 5.1 ECHR. Deprivation
of liberty based on crime prevention, public health
considerations or vagrancy should be governed by
the same rules, regardless of the legal status the
person concerned has in the host country. These
grounds should therefore not be regulated by aliens
or immigration laws, but in other pieces of legislation.
Otherwise, there is a risk that this will lead to the
application of different standards based on the legal
status of the person in the country.
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