18
Development of community-based
models to prevent detention
International human rights standards establish that
Governmental practices of alternatives to detention
immigration detention shall be a measure of last
take various forms, ranging from enforcement-based
resort. This entails that detention can only be used
alternatives (such as regular reporting to the
if, in the individual circumstances of the case, certain
authorities, release on bail or other securities) to
conditions are met. Even when there is a legal ground
community-based solutions.93 The least intrusive
for detention, states should examine whether less
measures should be used. 94 In the past years,
invasive measures (e.g. alternatives to detention) can
several governments have adopted policies and
be applied instead of detaining the person.90
laws implementing community-based alternatives
to detention.95 Community-based solutions allow
Under EU and international law, “alternatives to
people to live in the community while working on
detention” can be applied solely when the grounds
their migration procedures. Contrary to enforce-
for detention are met. They may entail different
ment-based solutions, which aim to control, restrict
levels of coercion but cannot be applied outside the
and deter migrants, community-based solutions
cases where detention is possible, for instance when
are grounded in engagement and holistic support.
there is no reasonable prospect of removal. If there
As underlined by the Council of Europe’s “Legal and
is no legal ground for detention (for instance, no risk
practical aspects of effective alternatives to detention
of absconding), detention is not lawful, hence the
in the context of migration,” provision of case man-
person should not be detained at all. In this regard,
agement is one of the key components of effective
alternatives to detention must not be considered as
alternatives.96
91
alternatives to unconditional release, and persons
eligible for release should not be channelled into
alternatives to detention.92
90 WGAD, Revised Deliberation No. 5 on deprivation of liberty of migrants, para. 18; SRHRM, Detention of migrants in an irregular situation, para. 73; CJEU, FMS,
FNZ, SA, SA Junior v. Országos Idegenrendészeti Főigazgatóság Dél-Alföldi Regionális Igazgatóság, Országos Idegenrendészeti Főigazgatóság, C‑924/19 PPU,
C‑925/19 PPU, (May 14, 2020), para. 293. See also P. De Bruycker, A. Bloomfield, L. Tsourdi, J. Petin (2015), Alternatives to Immigration and Asylum Detention.
91 See also PICUM, 2022, Immigration detention and de facto detention: what does the law say?, Q.7.
92 Ibid.
93 See PICUM, 2021, FAQ migration policies, detention and return.
94 Special Rapporteur on the human rights of migrants, 2020, Ending immigration detention of children and providing adequate care and reception for them, para.
73; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General comment No. 5 on migrants’ rights to liberty, freedom
from arbitrary detention and their connection with other human rights, para. 51.
95 International Detention Coalition, 2022, Gaining Ground. Promising Practice to Reduce and End Immigration Detention.
96 Council of Europe, Steering Committee for Human Rights, 2018, Analysis of the legal and practical aspects of effective alternatives to detention in the context of
migration. For more information see EATDN and PICUM, 2020,
Implementing Case Management Based Alternatives to Detention in Europe.
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