Detention of third country nationals in return procedures

The Fundamental Rights Agency (FRA) examined law and practice in the EU 27 on the deprivation of liberty of irregular migrants pending their removal against the applicable international human rights law framework.

Detention of a person constitutes a major interference with personal liberty. Any deprivation of liberty must therefore respect the safeguards which have been established to prevent unlawful and arbitrary detention. This is also the case when detention is resorted to in order to facilitate the removal of irregular migrants.

Detention of irregular migrants in return procedures has been subject to heated discussions during the negotiations of the Return Directive. This report tries to deconstruct the various elements of the right to liberty and the prohibition of arbitrary detention. It presents for each of those elements an overview of applicable international law standards, as well as state practice with the aim of facilitating an objective discussion on these issues.

This report has to be seen against the background of the work by the European Union Agency for Fundamental Rights (FRA) in the context of the Contact Committee of the Return Directive, to which the Agency has been invited to participate in meetings by the Commission. The FRA shared preliminary considerations on selected fundamental rights issues covered by the Return Directive with members of the Contact Committee in September 2009. A draft version of this report has also been shared with the Committee members for comments which have been taken into account when drafting this report.

Member States are required to transpose the Return Directive by the end of 2010. With its engagement with the Contact Committee and through this report, the FRA hopes to assist Member States in dealing with the fundamental rights challenges raised by the complexity of the subject.