Refugee Survey Quarterly  89 the removal and detention order are issued by the Hellenic police rather than the courts. According to the Law 3907/2011 on the return of TCNs, undocumented TCNs who are the subject of return procedures may be detained in order to prepare the return and to carry out the removal process only if, having regard to the individual circumstances of the case, no other sufficient but less coercive measures can be applied effectively. In conformity with international,14 European15 and EU law,16 the Greek legislation prohibits detention of TCNs whose return is not feasible.17 The term “less coercive measures” corresponds, most probably, to the alternative forms of detention measures provided by the EU Return Directive 2008/115.18 As a preliminary remark, it should be noted that although Law 3907/2011 provides that detention is permitted only exceptionally when alternative measures cannot be applied, alternatives are neither examined nor applied in practice by the Hellenic Police before issuing detention orders.19 Nonetheless, challenges to detention orders before the police or the courts on the grounds that the TCN is able to provide a known and stable residence, as an alternative to detention in a specific case, is generally successful in practice. Under Greek law, detention of undocumented TCNs is permissible when: (1) there is a risk of absconding; (2) the TCN avoids or hampers the preparation of return or the removal process; or (3) for reasons of national security. Greek law departs from EU standards in respect of this last ground, (3), which is not provided as a permissible ground of detention by the Return Directive. As such, the inclusion in Greek law of national security as a ground for administrative detention appears to constitute a serious breach of EU law. According to the Court of Justice of the EU, 14 UN Human Rights Council, Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/13/ 30, 18 Jan. 2010, para. 64: “The principle of proportionality requires that detention always has a legitimate aim, which would not exist if there were no longer a real and tangible prospect of removal.” See also Working Group on Arbitrary Detention, Opinion No. 45/2006, UN Doc. A/HRC/7/4/Add.1, 16. Jan 2008, 40. 15 Any deprivation of liberty under Art. 5(1)(f) ECHR is justified only for as long as deportation proceedings are in progress. Concerning “realistic prospect of expulsion”, see ECtHR, Mikolenko v. Estonia, Judgement, Appl. No. 10664/05, 8 Oct. 2009, para. 68. 16 The EU Return Directive 2008/115 provides that detention can be maintained as long as removal arrangements are in progress and that it is necessary to ensure successful removal (Art. 15(1) and (2)). See Court of Justice of the European Union (CJEU), Said Shamilovich Kadzoev (Huchbarov), Judgment, Grand Chamber, Case C-357/09, 30 Nov. 2009, para. 67. 17 Art. 30(4) of the Law 3907/2011. 18 Art. 15(1). See also Art. 7(3): “Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure.” 19 Asylum Information Database, National Country Report Greece, Brussels, European Council on Refugees and Exiles, Nov. 2015, 92–93, available at: http://www.asylumineurope.org/reports/country/greece (last visited 3 Dec. 2016); European Migration Network, The Use of Detention and Alternatives to Detention in the Context of Immigration Policies (Greece), 20–24; UN Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants: “As noted earlier, despite the fact that Law 3907/2011 provides for the detention of migrants only when less coercive measures cannot be implemented, in practice, no such measures exist and irregular migrants are systematically detained”; and Council of Europe, Parliamentary Assembly, Migration and Asylum: Mounting Tensions in the Eastern Mediterranean, para. 34: “[Detention] a matter of first resort rather than last resort. Alternatives to detention are currently not used or explored.” Downloaded from https://academic.oup.com/rsq/article-abstract/36/1/85/2888417 by Lancaster University user on 19 December 2017