According to the Return Directive (RD),[27] which lays out the European Union legal framework for detention,
the detention of third country nationals can only be ordered “to prepare the return and/or carry out the removal
process, in particular when:
a) there is a risk of absconding or
b) the third country national concerned avoids or hampers the preparation of return or the removal process.
[28]
National authorities need to assess every available alternative to detention and can only detain a third country
national if other less coercive measures cannot be applied effectively in a specific case.[29] Importantly, the
Directive states that when it appears that a reasonable prospect of removal is no longer possible, individuals
should be released from detention immediately.[30]
In 2020, a highly concerning amendment to the Greek transposition of the Return Directive, Law 3907/2011, was
introduced, which overturned the principle that detention of third country nationals is only applied as an
exceptional measure and where all other alternatives are not applicable. As a result, third country nationals who
are subject to return procedures are detained in order to carry out the removal procedure. Only under the
following reasons may third country nationals be exempt from detention and instead alternative measures could
be applied:
a) there is no risk of absconding or
b) the third country national concerned is cooperative and does not hamper the preparation of return or the
removal process or
c) there are no national security grounds.[31]
This is explicitly in breach of Article 15 of the EU Return Directive and contributes to the systematic use of
detention for third country nationals subject to a return order. Additionally, in practice, alternative measures are
not applied for the detention of third country nationals.
The time frame of detention of third country nationals should be as short as possible and can only be maintained
as long as removal arrangements are in progress and executed with due diligence.[32] As per Greek law,[33] the
maximum time frame of detention is six months, but can be extended for an additional 12 months if
a) the third country national refuses to cooperate or
b) the receipt of the necessary documents from third countries is delayed.
Legal Framework for Conditions of Detention
The conditions of detention are governed by two different frameworks: one for third country nationals, and one
for asylum seekers. In Greece however, third country nationals and asylum seekers are both detained in PRDCs
and are not detained separately. Article 10 of the RCD requires third country nationals to be kept separate from
applicants of international protection in special detention facilities. However, when this is not possible, the
detention conditions provided for in the RCD apply to third country nationals as well.
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