States may extend a person’s detention past six months only for a limited number of exceptional reasons.93 Finally, under Article 15 (4) RD “[w]hen it appears that a reasonable prospect of removal no longer exists . . . detention ceases to be justified and the person concerned shall be released immediately”94. b. Greek Law: Law 3907/2011 Law 3907/2011 transposes the RD into Greek Law. Prior to 2020, the detention standards laid out in Article 30 Law 3907/2011, the article that governed detention, were in line with EU law. However, an amendment to the 2019 asylum law, Law 4686/2020, expanded the detention scheme for rejected asylum seekers in two respects: first, Law 4686/2020 now provides that “in case that the Appeal is rejected, the applicant . . . is detained in a Pre-removal Facility, up until his/her removal is completed or his/her application to be finally accepted”95. Second, Law 4686/2020 introduced what AIDA called a “radical amendment” to Article 30 that reversed the rule that detention be used as a last resort and instead established a scheme of automatic detention. Whereas Article 15 RD begins with “unless other sufficient but less coercive measures can be applied . . .”, the amended Article 30 Law 3907/2011 states that all “[t]hird country nationals subject to return procedures” be placed in detention in order to prepare the return and carry out the removal process”96. The amended Article 30 (1) goes on to say that in the case that the police do not consider there is no risk of absconding, or the person is cooperative and not hampering the return procedure, or there are no national security concerns, then other less coercive measures should be applied.97 c. European Human Rights Law: Article 5 § 1 (f) ECHR, second limb Detention of rejected asylum seekers is governed by the second limb of Article 5 § 1 (f) ECHR stating that detention shall only be imposed while “action is being taken with a view to deportation or extradition”. Even if Article 5 § 1 (f) does not itself require a test of necessity, such test may still be required due to national legislation.98 Independently of a necessity test, Article 5 § 1 (f) ECHR requires states to consider the particular circumstances and issue an individual decision.99 For a detention to be lawful under Article 5 (1) (f) Second Limb ECHR, the removal must be actually feasible and there must be a prospect of removal. i. Factual Possibility of Removal The Court requires a reasonable prospect of removal, meaning that the readmission has to be factually possible within a reasonable time frame. For example, in Tabesh v. Greece, the Court held that the readmission of the applicant was not immediately possible as he had no travel documents (Judgement of 26/11/2009, No. 8256/07, § 53). The Court held that the applicant’s detention for three months was arbitrary as he could not be deported without travel documents, and the Greek authorities had not taken necessary, active steps to get these issued. As such, the duration of his detention exceeded the time reasonably required for the purpose pursued, and therefore there was a violation of Article 5 (1) (f) ECHR. In the case A. and Others v. the United Kingdom, the Court found a violation of Article 5 ECHR because, even though the authorities considered the detention to be necessary because their presence in the country was a threat to 93 94 95 96 97 98 Art. 15 (6) Directive 2008/115/EC. Art. 15 (4) Directive 2008/115/EC. L. 4686/2020. Art. 30 (1) L. 3907/2011 as amended by L. 4686/2020. Ibid (Art. 30 (1) L. 3907/2011 as amended by L. 4686/2020.). ECtHR, Judgement of 04/04/2017, No. 23707/15, Muzamba Oyaw v. Belgium, para 36; ECtHR, Judgement of 25/01/2018, No. 22696/16, J.R. and Others v. Greece, para 111. 99 ECtHR, Judgement of 04/04/2017, No. 39061/11, Thimothawes v. Belgium, para, 73, 79-80. 12 DETENTION OF MIGRANTS ON THE ISLAND OF KOS