Alternatives to detention for asylum seekers and people in return procedures

According to EU law, as well as Article 5 of the European Convention of Human Rights, deprivation of liberty for immigration-related reasons can only be used as a measure of last resort. An assessment needs to be made in each individual case to determine whether all the preconditions required to prevent arbitrary detention are fulfilled. Under Article 8 of the Reception Conditions Directive 2013/33/EU and Article 15 of the Return Directive 2008/115/EC, detention must not be used when less intrusive measures are sufficient to achieve the legitimate objective pursued.

Most of the wide array of alternatives to detention imply some restrictions on freedom of movement and/or other fundamental rights. Any restrictions to these rights must be in conformity with Article 52 (1) of the EU Charter of Fundamental Rights. This means that limitations must be provided for by law, must genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others, respect the essence of the right, and be proportionate. Alternatives to detention must, therefore, be distinguished from unconditional release from detention or unrestricted placement in open facilities.

Abstract:

For asylum and return (i.e. expulsion) procedures to be implemented effectively, people need to be at the disposal of the authorities so that any measure requiring their presence can be taken without delay. To achieve this, EU Member States may decide to hold people in closed facilities. Less intrusive measures, which are usually referred to as alternatives to detention, reduce the risk that deprivation of liberty is resorted to excessively.

In light of the significant number of asylum seekers and migrants reaching the EU’s external borders and moving onward to other EU Member States, there is a danger that deprivation of liberty may be resorted to excessively and in cases where it is not necessary. With this compilation of legal instruments and other resources, FRA seeks to provide guidance to policy makers and practitioners on the use of non-custodial measures for asylum seekers and people in return procedures.

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