3. Maximum length of detention 3. Maximum length of detention The Return Directive is the first binding supra-national document providing for a maximum length of preremoval detention. The rationale for an upper limit of detention is the desire to prevent instances of indefinite detention. It is based on the consideration that after a certain period of time has elapsed and the removal has not been implemented, the deprivation of liberty loses its initial purpose and becomes a punitive measure. Cases of long-term detention have not been uncommon in European countries, as the following examples illustrate. In Lithuania, an individual was detained in 2002 for more than four years.117 Similarly, in Estonia, the maximum has been close to four years (1,436 days). In Bulgaria, Romania and the UK, there have been cases around three years of detention.118 In Cyprus, the Ombudsman has reported cases of detention lasting for two years.119 In Sweden, the Migration Court accepted that two years and eight months of detention were exceptionally justified in case of an irregular immigrant that had an expulsion order due to criminal offences. 120 While these cases exemplify situations of clearly excessive duration of pre-removal detention, it is more difficult to draw a line beyond which no case, whatever exceptional its circumstances are, the length of detention loses its initial purpose and becomes arbitrary. The Return Directive has established such line at 18 months for which it was strongly criticised internationally and by civil society.121 117 Information provided by the Foreigners’ Registration Centre in Lithuania to the national FRALEX expert. The longest case of detention corresponded to 1,523 days. 118 For Bulgaria, see the case of Mr Kadzoev, who was in detention for over three years (ECJ, Kadzoev, Case C-357/09). For Romania, see the recent judgment by the ECtHR (Grand Chamber), Al-Agha v. Romania, 2010, No. 40933/02 concerning a Palestinian detained for three years and five months. For the UK, see R (on the application of Wang) v. Secretary of State for the Home Department, [2009] EWHC 1578 (Admin), United Kingdom: High Court (England and Wales), 5 June 2009, concerning an Iranian detained for 34 months. 119 See, for instance, the Ombudsman report for 2006, p. 103-105, available at: http://www.ombudsman.gov.cy/Ombudsman/ombudsman.nsf/All/32C 49D97734F1624C22575B20045BB24/$file/ΕΤΗΣΙΑ%20ΕΚΘΕΣΗ%202006. pdf?OpenElement. 120 See MIG 2008:44, SOU 2009:60, p. 169. 121 See UN press release, UN experts express concern about proposed EU Return Directive, 18 July 2008, UNHCR, UNHCR Position on the Proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 16 June 2008, p. 2. See also joint press release by ECRE and Amnesty International, ‘Returns’ Directive: European Parliament and Member States risk compromising respect for migrants’ rights’, 20 May 2008 as well as the attached letter to European Parliament Members, available at http://www. ecre.org/files/ECRE%20AI%20Joint%20PR%20Returns%20Directive.pdf. To be more precise, the Return Directive foresees two ceilings. The first ceiling is set at six months (Article 15.5). Pre-removal detention should normally not be extended beyond such period. In exceptional cases, Article 15.6 of the Directive provides for two exceptions in which detention can be extended for a further 12 months, provided such possibility is set forth in national law and all reasonable efforts to carry out the removal operation are undertaken by the authorities. The first exception is when the removal is likely to last longer owing to a lack of cooperation by the person concerned. The second exception lies outside the sphere of influence of the person as it relates to a delay by the country of return in issuing the necessary documentation. 3.1. Time limits set out in national law UN Working Group on Arbitrary Detention Report to the 13th session of the Human Rights Council, paragraph 61 Further guarantees include the fact that a maximum period of detention must be established by law and that upon expiry of this period the detainee must be automatically released. Nine EU Member States have not laid down by law a maximum time limit for pre-removal detention122 or for certain types of pre-removal detention as shown in the map in Figure 1.123 Without a maximum period of detention stipulated by law, the rights of irregular migrant detainees are protected only to the extent that they can exercise rights of judicial review. 122 No upper time limit is set forth in law in Cyprus, Denmark, Estonia, Finland, Lithuania, Malta, Sweden and the UK. In these countries, the time limit is set by courts in individual cases or by policy, as is the case of the 18-month limit set in Malta. See Annual Report 2010 of the Working Group on Arbitrary Detention, A/HRC/13/30. In the Netherlands, no upper limit is foreseen in law for deprivation of liberty resulting from Article 59.1(a) of the Aliens Act 2000, which is by far the most common ground for alien detention, whereas time-limits exist for detention pursuant to Article 59.1(b) and 59.2 (four or six weeks as per Article 59.4). 123 In Romania, no time limits have been established for the detention of undesirable aliens (Emergency Ordinance Article 97.4), while a two-year limit is laid down in law for detention of aliens against whom a measure of expulsion has been ordered (Article 97.3). 31