Detention of third-country nationals in return procedures 1.2. Grounds found in national legislation European Court of Human Rights H.L. v. United Kingdom, 2004, paragraph 114 Further, given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail. Generally speaking, at a national level, one can distinguish three broad approaches regarding the way in which grounds for pre-removal detention are laid down in legislation. In a first group of countries, specific and sometimes quite detailed lists of situations which justify detention are included in national law.12 In a second group of countries, the grounds allowing for pre-removal detention are described in general terms.13 Finally, a third group of countries have a relatively general description in the law, but more specific clarifications in the form of examples in the implementing regulations14 or other guidance note.15 A specific list may provide concrete guidance to officers in charge of taking a detention decision thus reducing the risk of arbitrary detention. If too prescriptive, it may, however, also undermine the margin of appreciations by the administration or by courts to determine if detention is appropriate in the individual case. In the same vein, a fairly general definition of detention may encourage a weighing of the different relevant factors in each individual case, but the larger margin of discretion given to officers may lead to inconsistent approaches. Where the grounds for detention are stated in a general manner, examples may though be useful. A wide range of grounds are foreseen in national law to justify the deprivation of liberty of irregular migrants. The following pages illustrate the more common grounds found in national legislation. While it is difficult to compare the different formulations included in domestic legislation, the six different categories of grounds outlined below do recurrently appear in national legislation. Pre-removal detention ordered by a court in the context of criminal proceedings is not covered in this report.16 Similarly, other grounds found in aliens or immigration laws which are not related to prevention of unauthorised entry or facilitation of return and removal are dealt with separately in the next section. The presence of one of the following grounds does not necessarily mean that detention is justified under national law. Other conditions, such as a necessity or proportionality test may be required by domestic legislation or jurisprudence. Detention to prevent unauthorised entry 12 This is for instance the case in Hungary, where Section 54 (1) of the Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals (TCN Act) allows detention of a third-country national to secure expulsion in five circumstances expressly listed in the law, ranging from obstructing or delaying the removal to disrespecting of reporting duties. Similarly, Section 62.2 of the German Residence Act of 30 July 2004 (Residence Act) lists six reasons for detention pending removal which include among others the failure to appear at an appointment with the authorities unless good cause is given and a well-founded suspicion that the foreigner will evade deportation. In Lithuania, Article 113 of the Law on the Legal Status of Aliens of 29 April 2004 (Aliens Act) lists seven grounds for detention, including, for instance, the suspicion of using forged documents. 13 In Malta, for instance, Article 14 of the Immigration Act prescribed mandatory detention for all “prohibited alien”, which essentially means anybody lacking the right of entry, stay or residence (see Article 5 of the same Act). In Portugal, Article 161 of the Act 23/2007 approving the legal framework of entry, permanence, exit and removal of foreigners into and out of national territory (Act 23/2007) allows for detention in case of disobedience to the removal decision. Article 13.2 of the 2001 Aliens and Immigration Act in Cyprus (Aliens Act) entrusts the authorities with the right to detain those persons deemed prohibited immigrants to whom an order to leave the territory has been issued. 14 This is, for example, the case in the Netherlands, which allows detention with the aim of forcibly removing irregular migrants when this is in the interest of public order or national security (Aliens Act, Article 59). The 2000 Implementing Guidelines of the Aliens Act at (A) 5.3.3.1 contain a long list of examples of when this can be in the interest of public order, e.g. risk of absconding to avoid forcible removal and past criminal record. These examples are not exhaustive as highlighted by the Administrative Jurisdiction Division of the Council of State (see decision of 4 May 2004, 200402389/1, consideration 2.1.1.). 15 See, for example, UK Border Agency, Operational Enforcement Manual, Chapter 55, available at: http://www.ukba.homeoffice.gov.uk/sitecontent/ documents/policyandlaw/enforcement/detentionandremovals/. 16 The Schengen Borders Code17 specifies the categories of persons who shall be refused entry into the EU and entrusts border guards with the duty to prevent irregular entry of such third-country nationals.18 Short term deprivation of liberty at the border in order to prevent unauthorised entry is essentially allowed in all European Union countries.19 16 See, for example, the provisions in Article 97 of the Romanian Emergency Ordinance No. 194 from 12 December 2002 on the status of aliens in Romania (Emergency Ordinance) which allows for the detention of an alien declared undesirable; Article 62.1(a) Slovak Residence of Aliens Act No. 48/2002 (Aliens Act) which envisages detention due to criminal removal of a person or Section 54.1 of the Hungarian TCN Act, which allow the detention of a person released from imprisonment having been sentences for a deliberate crime; and Section 51.1(4) of the Latvian Immigration Law of 20 November 2002 (Immigration Law). 17 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). 18 Ibid., at Article 13. 19 See, for instance, Austrian Aliens Police Act at Sections 41-43; France, Law 92-625 of 6 July 1992, which established a special detention regime for transit zones; Section 41.1 Hungarian TCN Act, which establishes a maximum of 72 hours in case of stay at a designated place at the land border or a maximum of 8 days at a designated zone of the airport; Lithuanian Aliens Act, Article 113.1. In Slovakia a separate provision regulates the detention in case of return on the basis of a bilateral agreement, usually a readmission agreement (Aliens Act, Article 62.5 and 62.1 (c)); Slovenia, National Border Control Act 60/07 of 6 June 2007, Article 32.