1. Exhaustive list of grounds In practice, this occurs more frequently at airports, where it may not be possible to immediately return the person to the country he or she came from. In these cases the person may be asked to remain in the transit zone or in other designated facilities to wait for the next return flight. Confinement at the border is usually limited to a short period of time. When the departure cannot be organised, the person is normally transferred to other facilities outside the transit area. Detention to effect removal All European Union countries allow detention of thirdcountry nationals in order to prepare return or implement removal, although different wording to define such ground for deprivation of liberty is used in domestic law. About two thirds of the countries expressly provide for facilitation of return or removal as a ground for detention. Other countries use different language to justify detention as described below. Among those countries which make express reference to facilitation of return or removal as a ground for detention in national law, some refer to the need to ensure the return or removal of the person concerned.20 Other countries use a broader language and entrust the authorities with the power to detain an individual if a decision of expulsion has been taken.21 Detention to execute return or removal proceedings is sometimes the sole ground,22 sometimes listed as one of several grounds23 or among one of more cumulative grounds.24 20 See, for instance, Austrian Aliens Police Act, Section 76.1; Belgium, Loi du 15 Décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law on Foreigners), Article 7.11; Denmark, Aliens (Consolidation) Act No. 785 of 10 August 2009 (Aliens Act) Article 35.1; Estonia, Obligation to Leave and Prohibition on Entry Act of 21 October 1998 (OLPEA) Section 15.1 read in light of Supreme Court decision 3-3-1-45-06 of 13 November 2006; Ireland, Immigration, Residence and Protection Bill 2008, Section 55; Latvia, Immigration Law 2002, Article 51.1(2-3); the Netherlands, Aliens Act, Article 59; Poland, Act on Aliens of 13 June 2003 (Act on Aliens), Article 102.1 (1); Slovakia, Aliens Act at 62.1(a); Spain, Law 4/2000 of 11 January 2000, Sobre Derechos y Libertades de los Extranjeros en Espana y su Integración Social (BOE No. 10, of 12 January 2000) (as amended up to 12 December 2009) (Law 4/2000), Art. 62; Sweden, Aliens Act 2005:716 (Aliens Act), Article 10.1 lists the need to assess the right of the alien to remain in the country as one of the grounds for detention; the UK, 2002 Nationality, Immigration and Asylum Act, Section 62. 21 See Cyprus, Aliens Act at 13.2 which allows for the detention of any prohibited immigrant who has received an order to leave the country. See also Czech Republic, Act No. 326/1999 Coll. on the Residence of Foreign Nationals in the Territory of the Czech Republic (FORA), Article 124.1; Estonia, OLPEA, Section 15.1; German Residence Act at 62.2(1); Poland, Act on Aliens, Art. 102.1 (2) if there is a risk that the return decision will not be executed voluntarily; Romania, Emergency Ordinance, Art. 97. France, Italy and Luxembourg allow for the detention when it is not possible to execute immediately the removal (see France, Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA) at 551-1; Italy, Decreto legislativo of 25 luglio 1998, No. 286 (last amended by law of 15 July 2009, n. 94) (LD 1998/286), Article 14; Luxembourg, Loi portant sur la libre circulation des personnes et immigration, 28 August 2008 (Immigration Law) at Art. 120. 22 See Belgium, Law on Foreigners at Art. 7.11. 23 See Slovak Aliens Act, Section 62.1(a); Italy, LD 286/98 which uses however the term ‘return’, Article 14; Sweden, Aliens Act, Article 10.1. 24 This is, for example, the case in the Netherlands, where deprivation of Detention for irregular entry, exit or stay Legislation in some countries list irregular entry or stay as grounds for detention. This is the case of Latvia, Lithuania, Malta and Poland. According to Section 51.1(1) of the Latvian Immigration Law a third-country national can be detained if he/she “has illegally crossed the State border […] or otherwise violated the procedures […] for entry or residence”. In Lithuania, an alien may be detained if he/ she “has illegally entered into or stays in the Republic of Lithuania”.25 In Malta, detention is essentially mandatory for those persons defined as prohibited aliens and in respect to whom a removal order has been issued. These include, among other categories, third-country nationals who violated the rules for entry or stay in Malta.26 Finally, in Poland, Article 102.1(3) of the Act of Aliens allows for the detention of an alien who has crossed or attempted to cross the border in an irregular manner. At first sight, these provisions appear problematic as they seem to authorize the administration to deprive the liberty of a foreigner solely for reasons of being an irregular migrant, without requiring the need for actions in view of his/her return or removal. Safeguards can be found in some of these countries to reduce the risk of arbitrary detention. For instance, in Latvia, any detention decision by the administration has to be reviewed by a judge who will need to assess different factors, including whether the foreigner is concealing his/her identity or if he/she does not cooperate.27 Detention to establish identity and nationality A common ground for the deprivation of liberty is the need to establish the identity of the person concerned. In practice, the identification and documentation of irregular migrants remains a significant challenge for the administration. It is also one of the main practical obstacles preventing the authorities from removing a person who is not entitled to stay. It is therefore not surprising that several countries explicitly allow the detention of an irregular migrant for the purpose of establishing or confirming, through the issuance of relevant documents, his or her identity and nationality.28 liberty must fulfill two conditions: it has to be with the aim of forcibly removing an irregular migrant and it has to be in the interest of public order or national security. See Aliens Act at Article 59. 25 Lithuanian Aliens Act, Chapter VII, Article 113.2. 26 Malta, Immigration Act, Article 5. 27 See Article 54.1(1) Latvia, Immigration Law; other factors include the lack of means, the risk of committing a crime, the threat to public order or national security and safety, the conviction for crimes against humanity, crimes against peace or war crimes and the existence of information which prohibits entry into Latvia. 28 See, for instance, Bulgaria, Foreigners in the Republic of Bulgaria Act of 5 July 1999 (Law on Foreigners), at 44(6); Finland, Aliens Act at 121.1(2) and 121.2; Hungarian TCN Act at 55; Italy, LD 286/98 at Article 14 which also includes the preparation of transport documentation among the allowed grounds for detention; Latvia, Immigration Law, Section 54.1(1) as 17