2. Necessity and proportionality 2. Necessity and proportionality In most countries, when grounds for detention are present, the administration can, but is not obliged to issue a detention order or prolong the deprivation of liberty. The administration is thus given a margin of appreciation in each individual case. The question is whether the authorities can freely decide whether to impose or prolong detention or whether they are bound by other considerations. This chapter deals with various situations in which preremoval detention, though based on grounds foreseen in national law can become arbitrary. The first set of issues examines what could be considered as pre-conditions required for the deprivation of liberty to be ordered or prolonged. These include the duty by the administration to carry out removal proceedings with due diligence and the existence of real and tangible prospects for removal, including the presence of legal or factual bars to removal. These conditions are generally not controversial. A second set of issues concern relevant factors to weigh before depriving a person of his or her liberty. Tests may be needed in order to find in each individual case an adequate balance between the interests of the state and the person’s right to liberty. However, not all legal systems in Europe require such weighing to take place. Where a weighing of individual circumstances is required, this may be for one or both of the following purposes. The first purpose is to assess whether it is necessary to restrict or deprive a person of his/her liberty, in light of the individual circumstances of the case. The main factors that are considered to establish this is the likelihood of absconding and the risk of other interferences with the removal process, in case the person is not detained. The second purpose of such weighing exercise is to establish whether the deprivation of liberty is proportional to the objective to be achieved, or whether removal could be implemented successfully also by imposing less restrictive measures, i.e. alternatives to detention, or a shorter period of detention. Such proportionality test may be required for all detention decisions or only for certain categories of persons who can only be deprived of their liberty as a measure of last resort, such as for instance children. This chapter will first describe such weighing, review examples of mandatory detention and then examine four different circumstances that play a role in determining whether detention is a legitimate measure in the individual case. These circumstances may be framed in national legislation as pre-conditions for detention or reviewed when determining if detention is necessary or proportional. 2.1. Balancing Return Directive Article 15.5 Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. At the international level, the ICCPR contains an express prohibition of arbitrariness of deprivation of liberty, which was included as an alternative to an exhaustive list of grounds for detention.51 This prohibition has been interpreted to include the fact that a deprivation of liberty must not be inappropriate and disproportional in view of the circumstances of the individual case.52 In this context, a deprivation of liberty which is not arbitrary at the beginning may become so after a certain period of time.53 In its guidelines concerning the detention of persons seeking asylum, UNHCR also requires that the deprivation of liberty be reasonable and proportional to the objectives to be achieved.54 By contrast, the European Court of Human Rights has accepted that states have a broader discretion when detaining a person under Article 5.1(f ) of the ECHR, compared to other interferences with the right to liberty. The Court stressed that in this case there is no requirement to examine that detention be reasonably considered necessary, for example, to prevent committing an offence or fleeing.55 Nevertheless, the Court posed a limit to such 51 See discussions in the 3rd Committee of the General Assembly, A/4045 at paras. 43ff reported in M.J. Bossut, Guide to the travaux préparatoires of the International Covenant on Civil and Political Rights, 1987 at p. 199. 52 See UN Human Rights Committee, Communication No. 305/1988, van Alphen v. The Netherlands, 23 July 1990 at paragraphs 5.8: “The drafting history of Article 9, paragraph 1, confirms that arbitrariness is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.” 53 See UN Human Rights Committee, Communication No. 560/1993, A. v. Australia, at 9.2. The case concerned an asylum seeker who had been kept in detention for over four years. See also the following communications concerning detention of a period of more than two years: Communication No. 900/1999, C. v. Australia, at paragraph 8.2, detention for six years; Communication No. 1014/2001, Baban et al v. Australia, paragraph 7.2; Communication No. 1069/2002; Bakhtiyari et al v. Australia, paragraph 9.3, detention period for almost three years. 54 UNHCR, UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, February 1999: “In assessing whether detention of asylum seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved.” 55 ECtHR (Grand Chamber), Saadi v. UK, No. 13229/03, 29 January 2008 at 72-73. Recently, however, the Court has found a violation of Article 5.1(f ) in case of the detention of four children, one of whom was showing 21