Detention of third-country nationals in return procedures There are different reasons that render the identification and documentation difficult. These include the lack of cooperation by the consular authorities of the country of origin, the non-cooperation by the individual concerned, communication difficulties (for instance, in the case of children) or the fact that the person is de jure or de facto stateless.29 It is interesting to note that, in most cases, the authority to detain in order to establish identity is formulated in general terms, regardless of whether the obstacles to identification or documentation lie within the responsibility of the irregular migrant or not. Even in cases in which national legislation expressly refers to situations caused by the irregular migrant, such as the use of false or forged documents,30 the destruction of travel documents,31 the provision of false information or the refusal to provide any information.32 Such situations often represent additional clarifications, which do not exclude the detention in case the obstacles for identification are based on reasons outside the sphere of the irregular migrant, such as the lack of cooperation by consular authorities. Detention to prevent absconding Risk of absconding and other action to avoid the return or the removal process are the two specific cases listed in the Return Directive to illustrate when the detention of a foreigner in order to prepare his/her return or removal can be resorted to.33 Securing the presence of the person until the day of the removal is in practice the most important rationale of pre-removal detention. The existence of a risk of absconding is normally one of the concrete factors to consider when resorting to a factor to be considered when deciding on the extension of the detention decision; Lithuania, Aliens Act at 113.4 in case the foreigner is suspected of using forged documents; Malta, Immigration Act at 25A.11(a); Slovenia, Aliens Act, Official Gazette, No. 64/09, 10.8.2009 (Aliens Act) at 56.2; Sweden, Aliens Act at 10.1(1); the UK, Detention Centre Rules 2001 SI 238 (02.04.2001), available at: http://www.opsi.gov.uk/SI/si2001/20010238.htm. 29 A de jure stateless person is defined in the 1954 Convention relating to the Status of Stateless Persons at Article 1 as someone “who is not considered as a national by any State under the operation of its law”. The International Law Commission has stated that this definition now forms part of customary international law; see the report of the International Law Commission, Text of the draft articles on diplomatic protection adopted by the Commission on first reading: Commentary on Article 8, General Assembly, Fifty-ninth session, Supplement No. 10 (A/59/10), 2004, p. 46.  De facto stateless persons include persons who though formally holding a nationality are outside the country of their nationality and are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country. It includes persons who, in practice, are unable to proof or establish their nationality and thus unable to return to their country. 30 See Malta, Immigration Act at 25A.11(a); Irish Illegal Immigrants (Trafficking) Act, 2000 at 10(b). 31 See Malta, Immigration Act at 25A.11(a). 32 See Finnish Aliens Act 301/2004 (Aliens Act) at 121.2; Denmark Aliens Act, Section 36.4 whereby aliens to whom alternatives to detention are applied and who obstruct the procuring of information can be detained. 33 See Article 15.1(a) and (b). 18 detention in all those countries which allow detention based on the need to facilitate return or removal. In addition, a number of countries expressly list the risk that the foreigner will evade the return or removal process34, whereas few make express reference to the risk of absconding as a ground for detention in their legislation35. A few countries also list failure to appear at an appointment with the administration as a separate ground for detention.36 Disrespect of alternatives and non-departure after voluntary period is expired Many countries can give the option to irregular migrants to depart on their own initiative or with the help of organisations supporting voluntary returns. This possibility may be given almost automatically to certain categories of irregular migrants or to selected individuals who fulfil certain conditions. Should the person not depart within the agreed period of time, legislation in several countries explicitly foresees the possibility to resort to detention.37 Similarly, some of those countries which provide in their legislation for the possibility to apply alternatives to detention, also expressly envisage the possibility to deprive the foreigner of his/her liberty in case he/she disregards the measures imposed38 (for instance fails to report to the police at regular intervals). 34 See, for example, Bulgaria, Law on Foreigners at 44.6; Greece, Codification of legislation on entry, residence and social integration of third-country nationals on Greek territory, Law 3386/2005 last amended by Law 3801/2009 (TCN Act) at Article 76.3; German Residence Act at 62.2(4)-(5); Finnish Aliens Act at 121.2; Hungarian TCN Act at 54.1(a) provides for the detention of third-country nationals who are hiding from the authorities; Irish Immigration Act, 2003 at 5(b)(d), Poland, Act on Aliens Article 102.1. 35 See, for example, Bulgaria, Law on Foreigners at 44.6; see also Dutch Aliens Act Implementation Guidelines at (A), 5.3.3.1 where risk of absconding is listed as an example of when detention can be considered to be in the interest of public order. 36 See Danish Aliens Act at 36.2; German Residence Act at 63.2, which however expressly excludes situations in which the foreigner can provide a good cause for such failure to appear (e.g. health reasons). 37 See, for instance, the German Residence Act at 63.2, which provides for the possibility of detention when the time limit for voluntary departure expired and the person changed place of residence without giving notice. In Italy, a 5 or 15 days deadline to leave the country may be given, which once expired allows the authorities to detain the migrant if he/she is still in the country. In the Netherlands, rejected asylum seekers and those whose application for a residence permit is refused are usually granted a 28 days period to depart voluntarily; the Aliens Act Implementation Guidelines at (A), 5.3.3.1 lists failure to depart as one of the examples of when detention can be considered as contrary to public order. The Polish Act on Aliens, Art. 101.1, provides for the possibility of apprehension for 48 hours when an alien did not leave Poland on the basis of a return decision within an indicated time limit (max within 14 days). See also in Portugal, Act 23/2007, Article 146.5; Article 56.1 Slovenian Aliens Act; Article 59.1(a) Slovak Aliens Act No. 48/2002. 38 See, for instance, Austria, Aliens Police Act at 77.4; Danish Aliens Act at 36.2 or Hungarian TCN Act at 54.1(d).