4. Procedural guarantees 4.3. Legal assistance Return Directive Article 13.4 Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC. Judicial review proceedings are generally quite complex and require a certain familiarity with domestic aliens’ law to be accessed in an effective manner. The European Commission on Human Rights concluded in a case of pre-removal detention (that was subsequently struck from the list) that “it would be unreasonable to expect the applicant to present his own case in the light of the complexity of the procedures involved and his limited command of English”.224 The importance of legal assistance is also stressed in Guideline 9 of the Council of Europe Twenty Guidelines on Forced Return, which indicates that “legal aid should be provided for in accordance with national legislation”. The provisions on legal assistance and representation were subject to considerable debate during the negotiations of the Return Directive. This is illustrated by the fact that States are granted one additional year to transpose the legal assistance guarantees included in Article 13.4.225 As highlighted in the box above, the Return Directive requires the provision of free legal assistance under the same conditions as foreseen in the Asylum Procedure Directive. In essence, this means that free legal assistance can be subject to a means test,226 be limited to specifically designated legal advisors227 or for cases where the review is likely to succeed.228 Domestic law may further regulate the modalities of free legal assistance and impose monetary or time limits.229 224 European Commission of Human Rights, Mohammed Zamir v. the United Kingdom, No. 9174/80, Report of the Commission adopted 11 October 1983, paragraph 113. See also ECtHR, Chahal v. the UK, No. 22414/93, 15 November 1996, paragraph 130 and ECtHR, Conka v, Belgium, No. 51564/99, 5 February 2002, paragraphs 44-45 where the Court gave considerable importance to the lack of legal representation when determining whether an existing remedy was to be considered as effective. 225 See Article 20.1 of the Return Directive. 226 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive), at Article 15.3(b). 227 Article 15.3(c) Asylum Procedures Directive. 228 Article 15.3(d) Asylum Procedures Directive. 229 Article 15.4-5 Asylum Procedures Directive. While some of these restrictions (such as for instance the means test) may not be particularly relevant in practice, others could substantially restrict access to free legal assistance. This is in particular the case for the possibility to limit legal assistance only to cases which are likely to succeed. Given the large discretion that the provision at Article 15.3(c) of the Asylum Procedure Directive gives to the authorities, the proposal for a recast Asylum Procedure Directive230 suggests to delete the possibility to deny legal assistance in the absence of likelihood of success. It remains to be seen, if the reference to “Article 15(3) to (6) of Directive 2005/85/EC” contained in the Return Directive will be interpreted in a static manner or whether the developments in the field of asylum law will be taken into consideration in interpreting the Return Directive. At national level, rules and practices governing free legal assistance to detained irregular migrants are quite diverse. Separate research would be required to map existing practices in detail. Moreover, to assess their effectiveness, it would be necessary to examine how often detainees make use of the right to judicial review. Figures on the frequency in which the right to judicial review was exercised are only available to the Agency for one country, Austria, covering 2007. There 630 complaints were filed out of a total number of 6,960 detention orders.231 At least in principle, all countries allow for some forms of access to free legal assistance to a person in pre-removal detention who wishes to challenge their decision. However, such access is subject to different conditions which vary from one country to another or may be restricted by practical obstacles. The following examples intend to illustrate existing diversity. Legal aid can be provided through the appointment of a lawyer ex officio, such as for example in Denmark.232 In other countries, free legal assistance may be subject to certain conditions, such as for example, a means test.233 Elsewhere, practical difficulties hinder effective access to a lawyer: In Ireland, an irregular migrant can contact a lawyer, but is not expressly informed about it in writing.234 230 See European Commission, Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast), COM(2009) 554 final, Brussels, 21 October 2009, proposed amendments to Article 15 (new Article 18). 231 Austria/Menschenrechtsbeirat (2008) Rechtsschutz für Schubhäftlinge, p. 17. 232 Denmark, Art. 37.2 Aliens Act, see also Finland, Legal Aid Act 257/2002, Section 2(2). 233 See for example Finland, Legal Aid Act 257/2002, Section 3; Spain, Article 22(2) of Law 4/2000. 234 See Kelly, Immigration–related detention in Ireland: A research report of the Irish Refugee Council, the Irish Penal Reform Trust and the Immigrant Council of Ireland, (Dublin: Human Rights Consultants, 2005) at p. 23 (paragraph 36), available at: http://www.immigrantcouncil.ie/ images/3217_immigrationdetention.pdf . 45