5. Alternatives to detention
5. Alternatives to detention
Alternatives to detention have to be distinguished from
unconditional release. They include a wide array of
measures, most of which imply restrictions on freedom
of movement. Although many countries provide for
the possibility of imposing alternatives to detention,
this is often done only exceptionally and primarily for
particularly vulnerable groups.
Compared to deprivation of liberty, alternatives are less
intrusive. Nevertheless, alternatives to detention imply
restrictions of fundamental rights, including freedom of
movement and in some cases the right to privacy. Any
restrictions to these rights must be in conformity with
human rights law.
With the exception of the study published by UNHCR
in April 2006 which focuses on asylum seekers, limited
comparative materials on alternatives to detention
exist.257 There is little exchange of experience between
state authorities on alternatives and examples of practices
generally considered as successful by governments and
civil society are limited.
This section first examines the types of alternatives to
detention that are foreseen in various European countries,
whereas the next section will review considerations
of proportionality relating to the duty to examine the
viability of alternatives before resorting to detention.
Children-specific information is covered in Chapter 6.
5.1. Alternatives found in national
legislation
Council of Europe, Twenty Guidelines on
Forced Return
Guideline 6.1
A person may only be deprived of his/her liberty, with a
view to ensuring that a removal order will be executed, if
[…] the authorities of the host state have concluded that
compliance with the removal order cannot be ensured as
effectively by resorting to non-custodial measures such as
supervision systems, the requirement to report regularly
to the authorities, bail or other guarantee systems.
257 O. Field and A. Edwards, Alternatives to Detention of Asylum-Seekers
and Refugees, UNHCR, POLAS/2006/03, April 2006; other materials
include the Jesuit Refugee Service: Alternatives to Detention (working
paper), October 2008 available at: http://www.detention-in-europe.org/
images/stories/jrs%20europe%20paper_alternatives%20to%20detention.
pdf; see also the EC-funded Survey on Alternatives to Detention by the
Regional Coalition 2006, edited by N. Chmelickova.
About two thirds of the European Union countries
provide for the possibility to impose alternatives to
detention, either before resorting to detention or when
reviewing if the time of detention should be prolonged
(see Figure 6).
Different types of alternatives have been developed
which may also be applied in combination. They can be
grouped in the following clusters.
Obligation to surrender passport
or travel documents
This possibility is foreseen in the national legislation of
a few countries.258 It may be imposed alone or together
with other alternatives, such as for instance the duty to
stay in a particular location or area. It is a soft measure
which essentially serves to ensure that valid identity and
travel documents are not lost or destroyed during the
time required to prepare the return and removal process
or that the person concerned travels.
Residence restrictions259
This includes the duty to stay at a particular address or
the obligation to reside in a specific geographical area
of the country, often combined with regular reporting
requirements. Designated places can be open or semiopen facilities run by the government or NGOs, hotels
or hostels as well as private addresses provided by the
person concerned. The regime imposed can vary, but
usually persons have to stay at the designated location at
certain times and absences may normally only be allowed
if good reason is given.
Release on bail and provision of sureties
by third parties
In the context of criminal law it is not uncommon to
allow for the release of a detained person upon pledges
of money which will be forfeited if the person does not
report to the authorities. In pre-removal proceedings,
release based on financial guarantees is not frequently
used,260 in part also because it is assumed that many
foreigners in removal proceedings would not have the
necessary means. It is therefore not surprising that in
258 See Denmark, Aliens Act at Section 34.1; Finland, Aliens Act at 119.1;
France, CESEDA at Article 552-4; Ireland, 2003 Immigration Act at 5.4(c).
259 See Austria, Section 77.3 Aliens Police Act; Germany, Section 61.1 Residence
Act; Denmark, Section 34.1 Aliens Act; Estonia, Section 10.1-2 of the OLPEA;
France, Article L 552-4 and L 552-5 CESEDA; Hungary, Section 62 TCN
Act; Ireland, Section 14 (1) a)-b) Immigration Act 2004 and Section 5(4)
Immigration Act 2003; Netherlands, Article 57 Aliens Act; Poland,
Article 90.1(3) Act on Aliens; Portugal, Act 23/2007 Article 142.1; Slovenia
Article 56 Aliens Act; UK, 1971 Immigration Act, Schedule 3, paragraph 2(5).
260 France, CESEDA at Article 552-4 (combined with the need to stay at a
designated place); UK, Operational Enforcement Manual 2008, at 55.20.
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