FORGOTTEN
Administratively detained irregular migrants and asylum seekers
According to the Return Handbook:
“Legal assistance and legal representation: Paragraph 4 specifies
in which cases and under which conditions Member States have to
cover the costs for legal advice and representation –referring in
essence to the conditions enumerated in the Asylum Procedures
Directive. Member States must provide both legal assistance and
legal representation free of charge if the conditions foreseen in the
Directive and the national legislation of implementation are met. The
request for free legal assistance and/or legal representation can be
made by the returnee or his/her representative at any appropriate
moment of the procedure. Provision of legal advice by administrative
authorities: Legal advice may in principle be offered also by the
administrative authorities responsible for issuing the return decisions,
if the information provided for is objective and unbiased (“effet
utile”). It is important that the information be provided by a person
who acts impartially/independently so as to avoid possible conflicts of
interests. Therefore, this information cannot be provided, for instance,
by the person deciding on or reviewing the case. A good practice,
already in use in some Member States, is to separate between the
decision making authorities and those providing legal and procedural
information. However, should a Member State decide to allocate
the latter responsibility to the decision making authorities, a clear
separation of tasks should be ensured for the personnel involved (e.g.
by creating a separate and independent section in charge of providing
only legal and procedural information)”.39
ii. Findings
As mentioned above, from our findings it became apparent that
detainees are not informed about their legal status, the possibilities
to challenge the decision for their detention and return or for their
right to free legal aid. Moreover, there is no free legal aid offered and
therefore legal representation depends on the financial situation of
the detainees.
39 Ibid, pages 72-73
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