The needless and harmful detention of illegally staying third country nationals : effective alternatives to detention in the European Union

Abstract

Every year, thousands of irregular migrants receive a return decision in all EU member states. Most of them are detained in order to enforce the removal. However, only a small amount of them are finally return to their country of origin or country of transit. Legal, administrative and humanitarian impediments prevent the effective return of many irregular migrants: they are unreturnable. In spite of being unreturnable, many of them face long periods in immigration detention and some of them are even detained several times, causing huge mental damages and disrupting their lives. International standards consider alternatives to detention the best option to carry out an effective removal whilst protecting the fundamental rights of irregular migrants. Nevertheless, the practice shows that most of EU countries use immigration detention systematically without considering alternatives. Considering the specific situation of unreturnable third country nationals (), this fact hampers the enjoyment of their human rights. This thesis revises the causes of unreturnability and goes through the legal framework of immigration detention. Moreover, it reviews the practice concerning the detention of irregular migrants in EU member states, which goes against legal standards in several cases. The last part of the thesis explains the alternatives to detention as well as further regularisation mechanisms that the EU member states should envisage whilst dealing with unreturnable TCNs to protect their human rights. Key words: unreturnable TCNs, immigration detention, alternatives to detention, EU, return procedure