The legitimacy of pre-removal detention authorised by the Return Directive relies upon judicial control as the ultimate guarantee that it will be as short as possible and maintained only for the purpose of removal. Apart from the fact that necessity and proportionality of detention are per se difficult elements to appreciate, this type of extended control on which the return directive relies is more or less new for judges, depending on the Member State concerned and its legal tradition in terms of profoundness of judicial control exercised upon the administration.
The main objective of the project is to inform, analyse and compare judicial control of detention of irregular migrants in order to improve it A representative sample of 11 Member States (Austria, Belgium, Bulgaria, the Czech Republic, France, Germany, Italy, the Netherlands, Slovakia, Slovenia and the United Kingdom) has been identified.
The methodology will rely upon an analysis of the national jurisprudence on the pre-removal detention of third country nationals. It will be collected and analysed with the help of judges hearing return cases, which will make possible to get access to decisions unpublished in journals. The period of reference will go from 2008 (before the adoption of the return directive that had to be transposed until 24 December 2010) until 2014 so as to evaluate the impact of the directive.
Against the background of the requirements of the Return Directive to base return decisions on “objective criteria” (Recital 6), the analysis reflected in 11 national reports and the final report synthesizing the latter will aim at:
- determining the different criteria used by judges when assessing the lawfulness and the length of detention, deciding whether to release or keep under detention the third country nationals, and
- evaluating the profoundness of judicial control on detention decisions at different levels (first instance and appeal).
The direct beneficiaries will be not only judges controlling the pre-removal detention but also national administrations in charge of detention and removal and the lawyers of third country nationals, who will all be better informed about what to expect from judicial control. The indirect beneficiaries will be detained third country nationals who will benefit from better judicial control, as well as the European institutions (in particular the Commission and the CJEU) in charge of controlling the implementation of EU law.