Detention as Punishment: Can indefinite detention be Greece's main policy tool to manage its irregular migrant population? by Anna Triandafyllidou, Angeliki Dimitriadi, Danai Angeli not legal? 1). According to EU Directive 2008/115/EC ('Returns Directive') which Greece has transposed, Member States may place in detention a migrant awaiting deportation in order to carry out his deportation or prepare his return to his home country, in limited cases and if less coercive measures are not sufficient. Given the exceptional nature of such a harsh measure, the Directive sets a maximum detention time of six (6) months. In exceptional circumstances detention may be extended for another twelve (12) months. 8 Thus, the total length of time that the Greek authorities may detain an irregular migrant for the purpose of removal is eighteen (18) months 9. When asked by the Bulgarian authorities whether it was allowed under EU law to extend detention beyond eighteen (18) months in the case of migrants who hamper their own removal process, the Court of Justice replied that “It must be pointed out that, [...] Article 15(6) of Directive 2008/115 in no case authorises the maximum period defined in that provision to be exceeded.” Detaining a person on grounds of “public order and public safety [...] that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means” cannot constitute grounds for alloέing detention to be eήtended beίond eighteen (18) months10. Since the time limit set by the EU Directive is both clear and unambiguous, leaving no space for Members States to differentiate 11, the Greek authorities will be violating the Directive if they do not immediately release migrants upon the expiry of eighteen (18) months. 2) The systematic use of detention as such, let alone an indefinite one as the police authorities seek to enforce, is also unlawful because it violates a number of international and European legal obligations. As mentioned earlier, both the EU Directive and Greek law clearly state that detention of irregular migrants for the purpose of removal is a measure of last resort, the use of which must be limited and can only be maintained as long as removal arrangements are in progress and executed with due diligence 12. To be justified, there must be a real prospect that the removal can be carried out. Asylum seekers, for instance, cannot be detained on grounds that they have entered or reside in the country illegally 13. The blanket application of detention towards all migrants and its automatic extension beyond eighteen (18) months finds therefore no basis under Greek and EU law also for this reason. 3. Next to EU and Greek law, Greece is also bound by its obligations under the European Convention of Human Rights (ECHR). In order for the detention of irregular migrants to be “laέful” under Article 5 par 1(f) the Conάention, the European Court of Human Rights, which issues binding judgments for the State Parties to the Convention, has developed 8 See Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals, available at http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons _asylum_immigration/jl0014_en.htm, Article 15. 9 See Article 30-32 Law Νo. 3907/2011 and Article 76 Law No. 3386/2005 as amended. 10 See Court of Justice of the European Union(Grand Chamber), Case C-357/09 PPU, Said Shamilovich Kadzoev (Huchbarov) v. Directorate for Migration at the Ministry of the Interior, Judgment of 30 November 2009, par. 68-71. 11 Ibid. paras 37, 54 and 61. 12 See Returns Directive, Article 15. 13 See also Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2005.326.01.0013.01.ENG; see also Article. 12, presidential decree 113/2013. 8