Detention of third-country nationals in return procedures discretion, establishing certain requirements to avoid that detention be branded as arbitrary: detention must be carried out in good faith, be closely connected to the purpose of preventing unauthorised entry and its length should not exceed that reasonably required for the purpose pursued.56 Based on these considerations, detention would, for example, not be justified if the administration would not initiate or execute return proceedings with due diligence or in the absence of prospects for removal. At least in almost half of the EU Member States, there is a clear requirement for the administration and/or the courts ordering or prolonging detention to balance the interests of the state and those of the individual when filling the margin of discretion given to them by the law. In some countries, this is reflected in legislation either in the form of a general proportionality test57 or with a list of criteria to consider when ordering or extending an order for deprivation of liberty.58 In other countries, courts have elaborated the need for a proportionality test59 or otherwise require a weighing of different factors.60 Concrete factors that are considered serious psychological and psycho-traumatic symptoms in a closed centre designed for adults and ill-suited to their extreme vulnerability, see ECtHR, Muskhadzhiyeva and others v. Belgium, No. 41442/07, 19 January 2010, paragraphs 69-75 concerning the detention of a Chechen family seeking asylum in the context of the Dublin procedure. See also ECtHR, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 October 2006. 56 ECtHR (Grand Chamber), Saadi v. UK, No. 13229/03, 29 January 2008, paragraph 74. 57 See Austria, Constitutional law on the protection of personal freedom [Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit], Article 3; and Finland, Aliens Act, Section 5. 58 See, for example, Ireland, Immigration Act 1999, Section 3(6) (a)-(k), Sweden, Aliens Act, Chapter 10.1. In Latvia, the law lists the criteria that the judge has to evaluate when deciding on the extension of a detention order (Immigration Law, Section 54.1). 59 See, for example, Constitutional Court BVerfG, Decision 27/02/2009, 2 BvR 538/07, http://www.bundesverfassungsgericht.de/entscheidungen/ rk20090227_2bvr053807.html. In Germany, the proportionality test is derived from the constitutional rule-of-law principle (Rechtsstaatsprinzip). According to the Constitutional Court, the constitutional principle of proportionality requires that the authorities refrain from detention where the deportation cannot be effectuated and the deprivation of liberty is not required (see Bundesverfassungsgericht [Constitutional Court] (BVerfG), Informationsbrief Ausländerrecht 2000, p. 221; see also General Administrative Regulations to the Residence Act (Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), 26 October 2009, at 62.0.3.1 and 62.0.3.2). 60 See, for Estonia, Riigikohus/3-3-1-45-06 (13.11.2006), paragraph 10; Estonia/Riigikohus/3-3-1-2-07 (22.03.2007), paragraphs 20-21. In Greece, the compilation of case law of the Administrative Court of 1st Instance of Athens – Decision 2001-2004, Nomiki Bibliothiki 2006 contains the list of factors for review by courts. For the Netherlands, see Administrative Jurisdiction Division of the Council of State [Afdeling Bestuursrechtspraak van de Raad van State], decisions 200603830/1 of 23 June 2006, decisions 200909865/1/V3, 05 February 2010, paragraph 2.1.2 and 200908127/1/V3, 07 January 2010, at paragraph 2.3, in which the Council of State recognises the margin of appreciation of the administration, but limits the review of the courts to whether grounds for detention exist, but does not allow them to replace the weighing by the authorities with its own weighing. In Denmark, the courts include ordinary considerations of proportionality when assessing the duration of the deprivation of liberty; see 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 22 vary considerably between countries, but may include risk of absconding, personal circumstances of the individual (for example, age or health status) and considerations of public order or national security,61 as well as crime prevention concerns62. A useful checklist with factors which must be taken into account when balancing the necessity for initial or continued detention against the person’s right to liberty has been developed by the UK Border Agency.63 UK Border Agency – Enforcement instructions and guidance Chapter 55.3.1 Factors influencing a decision to detain All relevant factors must be taken into account when considering the need for initial or continued detention, including: • What is the likelihood of the person being removed and, if so, after what timescale? • I s there any evidence of previous absconding? • I s there any evidence of a previous failure to comply with conditions of temporary release or bail? •H  as the subject taken part in a determined attempt to breach the immigration laws? (for example entry in breach of a deportation order, attempted or actual clandestine entry) • I s there a previous history of complying with the requirements of immigration control? (for example by applying for a visa, further leave, etc.) • What are the person’s ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment? • What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch? • Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? • Is the subject under 18? • Does the subject have a history of torture? •D  oes the subject have a history of physical or mental ill health? return measures of the police], p. 10, available in Danish at: http://www. politi.dk/NR/rdonlyres/81FB7CD9-47F7-4658-8D28-52C4EF0D327B/0/ Bilag1Detretligegrundlagapril.pdf. 61 See, for example, the Czech Republic, FORA at 124.1; Ireland, Immigration Act 1999, Section 3(6) (a)-(k); UK Border Agency, Operational Enforcement Manual, at 55.3.1. 62 Latvia, Immigration Law, Section 5. 63 See UK Border Agency, Operational Enforcement Manual, at 55.3.1, available online at: http://www.ukba.homeoffice.gov.uk/sitecontent/ documents/policyandlaw/enforcement/detentionandremovals/.