Detention of third-country nationals in return procedures 2.3. Due diligence in preparing and implementing removal Return Directive Article 15.1 [��] Any detention shall […] only [be] maintained as long as removal arrangements are in progress and executed with due diligence. In order for the deprivation of liberty of an irregular migrant to be in accordance with Article 5.1(f ) ECHR, the person concerned must be the object of action to prevent unauthorized entry or “with a view to deportation or extradition”. In other words, the authorities need to initiate and implement removal proceedings and do this with due diligence. In Chahal v. UK, the European Court of Human Rights held that detention to prevent unauthorised entry or to facilitate removal “will be justified only for as long as deportation proceedings are in progress. If such proceedings are not carried out with due diligence, the detention will cease to be permissible under Article 5 paragraph 1(f )”.72 It will become arbitrary. An assessment of whether all reasonable measures have been taken by the authorities to prepare and execute the removal of a person is an important factor when reviewing the length of detention. Such consideration could however also be relevant when taking the initial detention decision. If the administration has no intention to initiate removal arrangements (for instance, due to the absence of means of transportation to a particular country), it would be difficult to imagine how the deprivation of liberty could be considered necessary to effect the removal. The need to initiate and implement the removal with due diligence is also recognised by the Return Directive. Article 15.1 of the Directive stresses that any detention shall only be maintained as long as removal arrangements are in progress and executed with due diligence. At a national level, such requirement is sometimes set forth in legislation. This is, for example, the case in Belgium, where the administration can decide to prolong the detention beyond two months only when the necessary preparatory work to implement the removal has been undertaken within a delay of seven days from the detention and when it has been pursued with due diligence.73 More often, however, this requirement has been highlighted by courts, primarily when reviewing the 72 ECtHR, Chahal v. UK, No. 70/1995/576/662, 15 November 1996, paragraph 113. See also ECtHR, Tabesh v. Greece, No. 8256/07, 26 November 2009, paragraph 56. 73 Law on Foreigners, Article 7.11. 24 length of detention. In Austria, for example, detention may only last for as long as there is a real possibility of affecting the return within the maximum time limit allowed by law. If, from the very beginning, there is no real chance of affecting the return within this limit, the detention would be unjustified.74 In Denmark, when assessing the duration of the deprivation of liberty, the courts apply ordinary considerations of proportionality and take into account, among other things, whether the return proceedings are progressing.75 The French Constitutional Council allowed an extension of detention only if the repatriation measure taken against him/ her could not be executed “despite the diligence of the Administration”, because of a faulty delivery or delayed delivery of the travel documents by his/her consulate or by the lack of transportation.76 In Luxembourg, the administrative tribunals order the release when they consider that the administration has not taken all steps necessary for removal.77 In the UK, in the case of Hardial Singh, the High Court (England and Wales) ordered the applicant’s release, finding that the Home Office had not taken the action it should have taken and nor had it taken that action sufficiently promptly. It required the Secretary of State to “exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time”.78 In Germany, the principle of expedience (Beschleunigungsgrundsatz) obliges the administration to take all possible measures not to unduly prolong a deprivation of liberty.79 Detention is only justified for as long as meaningful measures to prepare the removal are taken.80 The following two cases provide an illustration of this principle in practice. The Higher Regional Court (Oberlandesgericht) in Karslruhe rejected the extension of detention in a case where the authorities waited for three weeks before contacting the administration of the detainee’s home country.81 Similarly, the Higher Regional 74 See, for example, rulings by the Constitutional Court [Verfassungsgerichtshof – VfGH] 5.12.1994, B 1075/94, B 1274/94; and the Highest Administrative Court [Verwaltungsgerichtshof VwGH] 26.9.2007, 2007/21/0253; 23.10.2008, 2006/21/0128; 18.12.2008, 2008/21/0582. 75 Denmark/Rigspolitiets Udlændingeafdeling, Det retlige grundlag for politiets udsendelsesarbejde i asylsager og politiets praktiske udsendelsesarbejde, 2009 [The legal foundation for return procedures and the practical return measures of the police], p. 10. (Available in Danish at: http://www.politi.dk/NR/rdonlyres/81FB7CD9-47F7-4658-8D2852C4EF0D327B/0/Bilag1Detretligegrundlagapril.pdf ). 76 France/Conseil Constitutionnel, 2003-484 (20.11.2003), p. 438, available online: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/ francais/les-decisions/depuis-1958/decisions-par-date/2003/2003-484dc/decision-n-2003-484-dc-du-20-novembre-2003.871.html. 77 Luxembourg, Question parlementaire N° 3071 (12.01.2009), see reply to question relating to Dublin II. 78  R v. Governor of Durham Prison ex p. Hardial Singh [1983] Imm AR 198, p.202. 79 German Constitutional Court [Bundesverfassungsgericht], Entscheidungen, decision number 2 BvR 66/ 00 from 3 February 2000 (BVerfGE) 61, pp. 28 and 34f. 80 See General Administrative Regulations to the Residence Act (Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), 26 October 2009 at 62.0.2. 81 Germany/Oberlandesgericht [Higher Regional Court] Karlsruhe, decision of