C. Material Legal Pre-Conditions for Detention: Purpose and Lawfulness of Detention Having the above-made distinction in mind, the following section details the legal context and preconditions for detaining asylum seekers and undocumented migrants, including rejected asylum seekers, under EU, Greek and European human rights law. For both categories, detention is defined as a deprivation rather than a mere restriction of liberty, as it involves both the full restriction upon one’s freedom of movement and the provision of formal detention orders.75 1. Detention of Asylum Seekers a. EU Law: Reception Conditions Directive (RCD) Article 2(h) RCD defines detention as the “confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement.” Article 8 provides the grounds and preconditions for detaining asylum seekers and the RCD starts from the general standard that MS “shall not hold a person in detention for the sole reason that he or she is an applicant for international protection”76. Article 8 (2) then goes on to establish a necessity test for detaining asylum seekers stating that “when it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive measures cannot be applied effectively”77. Finally, Article 8 (3) provides an exhaustive list of six reasons under which Member States may detain asylum seekers. That list includes: • In order to determine or verify his or her identity or nationality; • In order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; • In order to decide, in the context of a procedure, on the applicant’s right to enter the territory; • When he or she is detained subject to a return procedure under the Return Directive, in order to prepare the return and/or carry out the removal process, and the Member State can substantiate that he or she already had the opportunity to access the asylum procedure; • When protection of national security or public order so requires; • In accordance with the Dublin Regulation to determine the MS responsible for examining the application for international protection.78 In other words, although EU law does provide grounds for detaining asylum seekers, it similarly makes clear that detention should be the exception, rather than the rule. Even if a person can be detained for one of the reasons listed under Article 8 (3) RCD, the state authorities must still establish that the detention is necessary and no alternative, less coercive measures are available. b. Greek Law: IPA 75 See Art.2 (h) Directive 2013/33/EU and Art. 41 (c) L. 4636/2019; Art.15 Directive 2008/115/EC and Art.30 L. 3907/2011, for Art.5 §1 (f) ECHR see e.g. ECtHR, Judgement of 15/12/2016, No 16483/12, Khlaifia and Others v. Italy, para 64. The question of deprivation or restriction of liberty is one of degree or intensity and not one of nature or substance. Designated factors are type and place of restriction, relevant duration, effects, and manner of the implementation as well as a person’s consent to the confinement in question. 76 Art. 8(1) Directive 2013/33/EU. 77 Art. 8(2) Directive 2013/33/EU. 78 Art. 8(3) Directive 2013/33/EU. 9 DETENTION OF MIGRANTS ON THE ISLAND OF KOS