The terms “less coercive measures,” used throughout the Directives, are ambiguous.
Although the Directives state that provisions must be implemented, it is unclear what exactly
creates a “less coercive measure” and what factors each State must apply. The most common
alternatives to detention include mandatory reporting to authorities, residence restrictions,
surrender of travel documents, and bail release.102 However, it did not state whether these
measures were provided by domestic legislation. The European Commission assessed the legal
basis of 87 cases throughout 31 countries, in which it found that 32% of the cases have used less
coercive measures, 23% of the cases had no practical application, and that 45% had no
information regarding any use or application of less coercive measures.103
In regards to the ability of return through detention, a State’s ability to allow an effective
return is typically insignificant when it is done through detention or less coercive measures104.
Non-coercive measures such as granting travel documents typically result into an effective return
of the applicant and are less costly than detention.
Further, the RD states that judicial review may be longer if there are exceptionally large
numbers of detainees or applicants. While this provision may seem reasonable and must be broad
due to different States’ capacities, issues arise in the definition of “longer period” and
“exceptionally large.” The Directive merely states that detention should be limited to six months
or 12 months if there is a lack of cooperation by the applicant or if there is a delay in obtaining
documents from a third country. The RD does not define the reasonableness of delays nor define
cooperation among States to mitigate the delay in obtaining documents. Issues regarding these
provisions may be at the forefront with the current mass migration of Syrians and Iraqis.
102
EUROPEAN MIGRATION NETWORK, supra note 99 at 4
Id. at 38
104
Id. at 7
103
31
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