Detention based on the risk of absconding is thoroughly established in the Directives.
However, the EU must ensure a more uniform interpretation of what constitutes a risk in order to
mitigate challenges faced by authorities. This may be the most difficult recommendation to
oversee or implement since such authorities are designated by each individual State and
according to its domestic law.
Vulnerable Persons in Detention
The EU especially needs to focus on improving detention for vulnerable persons. Such
disproportionate measures that do not take into account an individual’s particular situation can
result in violations of due process, non-uniformity, and human dignity. Therefore, broad,
uniform definitions are needed for assessing vulnerabilities during individual interviews. It is
understandable that differences may occur in interviews, as different States have different
procedures. However, there needs to be broad guidelines to ensure that the most basic needs of
these individuals are addressed. The most basic procedures, such as humane conditions, access to
legal aid, separate accommodations, etc., are guaranteed and conveyed clearly, and are thus
understood by the applicants.
Alongside the special arrangements established for disabled persons, pregnant women,
elderly, victims of torture and sexual violence,140 the EU must define and provide a nonexhaustive list of potential vulnerabilities that could be considered in detention situations. This
should include such vulnerabilities as mental, physical, and emotional health, language (foreign
and disability) and basic legal competence. This non-exhaustive list would enhance uniformity
and uphold fundamental rights by ensuring that persons with special needs and vulnerabilities are
treated humanely.
140
EUROPEAN MIGRATION NETWORK, supra note 99 at 30.
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