2. Necessity and proportionality A different question is whether upon release, the persons are granted a right to stay for the time in which a legal bar to removal exists or whether their presence is simply tolerated by the authorities. In principle, in all European countries the third-country national has the option of submitting an asylum application. In case the individual had already submitted an application in the past, his/ her subsequent application may however undergo a preliminary examination.99 In addition, many countries have provisions that allow the granting of a permit on humanitarian grounds for reasons which go beyond refugee status and subsidiary protection status.100 However, the granting of a permit is by far not automatic in these cases. Once released from detention, irregular migrants are often not provided with lawful stay, either in order to avoid rewarding their lack of collaboration or for other considerations. Such individuals may be de facto tolerated, but remain in a legal limbo situation, sometimes for years. Without legal access to the labour market and with limited or no public assistance they are dependent on employment in an informal economy or on the support of charitable organisations or community members. FRA Opinion EU Member States are encouraged, when reviewing their aliens or immigration laws, to establish mechanisms to avoid situations of legal limbo by acknowledging the presence in the country of persons who are not removable and ensuring that they enjoy applicable fundamental rights. It would furthermore be important to start a reflection at European level to identify ways to put an end to protracted situations of legal limbo. Such reflection should not have the effect of rewarding lack of collaboration but create legal certainty and respect fundamental rights. 99 The possibility to examine in a specific procedure whether there are new elements or findings is foreseen in Article 32.2 of the Asylum Procedure Directive. 100 Refugee and subsidiary protection status are the two protection statuses which have been harmonised in the Qualification Directive. For nonharmonised statuses, see recent study by the European Migration Network on the different national practices concerning granting of non-harmonised protection statuses, national reports available online at http://emn. sarenet.es/Downloads/prepareShowFiles.do;jsessionid=92281108565A CFDBB6234CD4F4ED9B66?directoryID=113, as well as ECRE, Survey on Complementary Protection, July 2009. 2.6. Risk of absconding Return Directive Article 3.7 ‘[R]isk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond; […]. When applying Article 9 ICCPR, the Human Rights Committee concluded that detention “could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence”.101 Contrary to this, the European Court of Human Rights did not require that the deprivation of liberty be reasonably considered necessary.102 The Twenty Guidelines on Forced Returns, however, recommend to States to resort to deprivation of liberty only when the authorities “have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures”.103 Article 15.1 of the Return Directive, which lays down the grounds for detention, explicitly refers to risk of absconding and to other serious interferences with the return or removal process as illustrations of when the deprivation of liberty may be justified to prepare the return or carry out removal. Risk of absconding is defined in Article 3.7 and requires the existence of objective reasons in the individual case that the person will abscond. Article 15.5 states that detention shall be maintained for as long as “it is necessary to ensure successful removal”. The directive also requires that such risks be assessed on a “case-by-case basis”, underlining that “consideration should go beyond the mere fact of an illegal stay”.104 Although the Return Directive does not explicitly define the assessment required in the individual case, a combined reading of these provisions makes it difficult to imagine a situation which could justify the deprivation of liberty if there is neither a risk of absconding nor a risk of other serious interferences with the return or removal process. 101 UN Human Rights Committee, A. v. Australia, No. 560/199, paragraph 9.2 (see also Footnote 53), available online at: http://www1.umn.edu/ humanrts/undocs/html/vws560.html. 102 ECtHR, Saadi v. UK, No. 13229/03, 29 January 2008, paragraphs 72-73. Recently, however, the Court has found a violation of Article 5.1(f ) in the case of the detention of four children one of whom was showing serious psychological and psycho-traumatic symptoms in a closed centre designed for adults and ill-suited to their extreme vulnerability. 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. For both cases, see also Footnote 55. 103 See Council of Europe, Twenty Guidelines on Forced Returns, Guideline 6.1. 104 Return Directive, Recital 6. 27