Detention of third-country nationals in return procedures As outlined in Chapter 1 Section 2, national legislation in a number of countries enumerates risk of absconding or, more generally, a risk that the alien will evade or otherwise hinder the removal as one among different grounds for detention. Elsewhere, risk of absconding is listed as a condition to make detention lawful.105 In other countries it is one of the factors to consider in the context of a proportionality test106 or otherwise, when determining if detention shall be ordered or prolonged in the individual case,107 whereby evidence of previous failure to comply with immigration control requirements may also be a factor favouring a detention decision.108 A combined reading of Articles 15.1 and 3.7 of the Return Directive – which requires that the criteria for the existence of a risk of absconding be defined by law – may encourage national legislators to establish exhaustive lists of situations objectively giving rise to a risk of absconding. Establishing a risk of absconding requires however also an individual assessment of the particular circumstances of each case. Factors such as non-compliance with voluntary departure deadlines, failure to respect reporting duties, or a change of address after expiration of the time limit for departure which has not been notified to the authorities may all point to the need of resorting to deprivation of liberty. However, these should be assessed in light of the individual circumstances of each case in order to determine if they can be considered as signs of the existence of a risk of absconding or not. For example, failure to respect time limits for return or reporting duties, may be based on good reasons, such as serious health grounds requiring hospitalisation or the need to remain at rest. Thus, if lists of situations giving rise to a risk of absconding are drawn up, these should be limited to situations objectively constituting evidence of the existence of a risk of absconding, such as those listed in the commentary to Council of Europe Twenty 105 See Sweden, Aliens Act, Section 10.1. In the Czech Republic (FORA at Section 124.1) and in Poland (Act on Aliens at Article 102.1), a danger that the person might obstruct or hinder the execution of expulsion is one (of three) justifications for detention. In Slovenia, Aliens Act (Article 57.2) risk of absconding is listed as one among other justifications for applying a stricter detention regime. 106 See Austria, Higher Administrative Court decisions 2007/21/0078 of 28 June 2007 and 2008/21/0036 of 27 May 2009; Finland, Aliens Act, Section 5; German Residence Act Section 62(2) 5: “a well founded suspicion exists that he or she intends to evade deportation.” 107 See, for example, Dutch Aliens Act Implementation Guidelines at (A), 5.3.3.3; Greece, the compilation of case law of the Administrative Court of 1st Instance of Athens – Decision 2001-2004, Nomiki Bibliothiki 2006 which lists the risk of flight among the factors for review by court; UK Border Agency, Operational Enforcement Manual, at 55.3.1. In Ireland, although not expressly included among the criteria listed in Section 3(6) (a)-(k) of the 1999 Immigration Act, the relevance of a risk of absconding can be implicitly deduced from some of the other considerations, including those relating to character and conduct of the person or to the public good. 108 UK Border Agency, Operational Enforcement Manual, at 55.3.1. 28 Guidelines on Forced Return, Guideline 6.1. In these cases, deprivation of liberty should not be automatic and the authorities must be required to examine if in the particular case there are good reasons to rebut the presumption of the existence of a risk of absconding. FRA Opinion Pre-removal detention should essentially only be resorted to if there is a risk of absconding or of other serious interference with the return or removal process, such as interference with evidence or destruction of documents. EU Member States may consider making this explicit when reviewing their national legislation. 2.7. Personal characteristics and vulnerabilities Return Directive Recital 6 According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. Detention is a major interference with the right to liberty of any individual. However, its impact on persons with specific health needs, survivors of torture and other groups at risk may be proportionally higher than for others. It has been documented that deprivation of liberty, particularly if extended, can give rise to mental health problems109 or lead to a re-emergence of past trauma. Specific dietary needs and other preventive health care measures are generally more difficult to uphold whilst in detention. The Return Directive contains a list of vulnerable persons (Article 3.9). While the detention of children will be examined in detail in Chapter 6, the situation of other groups of persons generally defined as vulnerable needs consideration. Although the Return Directive does not ban the deprivation of liberty of vulnerable persons, it requires that, if detained attention is paid to their specific needs (Article 16.3). This would suggest that 109 See, for example, Jesuit Refugee Service – Europe, Becoming vulnerable in Detention, June 2010, pages 66ff. Attention to this issue was given also in Australia, see Australian Human Rights Commission Immigration Detention Report 2008, pages 25 and following, available at: http://www. unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=category&doci d=4a2e34692&skip=0&category=POLICY&querysi=deten tion&searchin=title&display=10&sort=date; Newman (et al), ‘Asylum, Detention and Mental Health in Australia’, in Refugee Surveys Quarterly, Oxford Journals, 2008, Vol. 27, pp. 110-127.