5. Alternatives to detention 5. Alternatives to detention Alternatives to detention have to be distinguished from unconditional release. They include a wide array of measures, most of which imply restrictions on freedom of movement. Although many countries provide for the possibility of imposing alternatives to detention, this is often done only exceptionally and primarily for particularly vulnerable groups. Compared to deprivation of liberty, alternatives are less intrusive. Nevertheless, alternatives to detention imply restrictions of fundamental rights, including freedom of movement and in some cases the right to privacy. Any restrictions to these rights must be in conformity with human rights law. With the exception of the study published by UNHCR in April 2006 which focuses on asylum seekers, limited comparative materials on alternatives to detention exist.257 There is little exchange of experience between state authorities on alternatives and examples of practices generally considered as successful by governments and civil society are limited. This section first examines the types of alternatives to detention that are foreseen in various European countries, whereas the next section will review considerations of proportionality relating to the duty to examine the viability of alternatives before resorting to detention. Children-specific information is covered in Chapter 6. 5.1. Alternatives found in national legislation Council of Europe, Twenty Guidelines on Forced Return Guideline 6.1 A person may only be deprived of his/her liberty, with a view to ensuring that a removal order will be executed, if […] the authorities of the host state have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems. 257 O. Field and A. Edwards, Alternatives to Detention of Asylum-Seekers and Refugees, UNHCR, POLAS/2006/03, April 2006; other materials include the Jesuit Refugee Service: Alternatives to Detention (working paper), October 2008 available at: http://www.detention-in-europe.org/ images/stories/jrs%20europe%20paper_alternatives%20to%20detention. pdf; see also the EC-funded Survey on Alternatives to Detention by the Regional Coalition 2006, edited by N. Chmelickova. About two thirds of the European Union countries provide for the possibility to impose alternatives to detention, either before resorting to detention or when reviewing if the time of detention should be prolonged (see Figure 6). Different types of alternatives have been developed which may also be applied in combination. They can be grouped in the following clusters. Obligation to surrender passport or travel documents This possibility is foreseen in the national legislation of a few countries.258 It may be imposed alone or together with other alternatives, such as for instance the duty to stay in a particular location or area. It is a soft measure which essentially serves to ensure that valid identity and travel documents are not lost or destroyed during the time required to prepare the return and removal process or that the person concerned travels. Residence restrictions259 This includes the duty to stay at a particular address or the obligation to reside in a specific geographical area of the country, often combined with regular reporting requirements. Designated places can be open or semiopen facilities run by the government or NGOs, hotels or hostels as well as private addresses provided by the person concerned. The regime imposed can vary, but usually persons have to stay at the designated location at certain times and absences may normally only be allowed if good reason is given. Release on bail and provision of sureties by third parties In the context of criminal law it is not uncommon to allow for the release of a detained person upon pledges of money which will be forfeited if the person does not report to the authorities. In pre-removal proceedings, release based on financial guarantees is not frequently used,260 in part also because it is assumed that many foreigners in removal proceedings would not have the necessary means. It is therefore not surprising that in 258 See Denmark, Aliens Act at Section 34.1; Finland, Aliens Act at 119.1; France, CESEDA at Article 552-4; Ireland, 2003 Immigration Act at 5.4(c). 259 See Austria, Section 77.3 Aliens Police Act; Germany, Section 61.1 Residence Act; Denmark, Section 34.1 Aliens Act; Estonia, Section 10.1-2 of the OLPEA; France, Article L 552-4 and L 552-5 CESEDA; Hungary, Section 62 TCN Act; Ireland, Section 14 (1) a)-b) Immigration Act 2004 and Section 5(4) Immigration Act 2003; Netherlands, Article 57 Aliens Act; Poland, Article 90.1(3) Act on Aliens; Portugal, Act 23/2007 Article 142.1; Slovenia Article 56 Aliens Act; UK, 1971 Immigration Act, Schedule 3, paragraph 2(5). 260 France, CESEDA at Article 552-4 (combined with the need to stay at a designated place); UK, Operational Enforcement Manual 2008, at 55.20. 49