Ambiguous and unclear application of judicial review results in prolonged and arbitrary
detentions that could be inhumane with a lack of access to essential services.
Another issue arises due to a lack of clear assessment indicators and criteria. Unclear
indicators may result in a violation of fundamental rights. Challenges arise for authorities when
interviewing individual, interpreting risk of absconding, proportionate measures, and assessing
vulnerabilities of individuals or the validity of documents. Misinterpretations could result in
placing an applicant in detention due to the lack of clear indicators.105Alongside the uncertainty
of criteria, there is also a complex legal framework, which results in non-uniformity and possible
violations of fundamental rights.106 For example, Lithuania’s domestic legislation does not
include explicit criteria for the risk of absconding. Ireland and Norway’s different factors create
a challenge in providing proportionate measures. Belgium’s authorities have challenges in
identifying relevant aspects for detention. Cyprus does not have a formal mechanism in assessing
vulnerable individuals.107 Although the very nature of EU Directives allows for state
interpretation, the inconsistent policies that are created across Europe pose a challenge to the
rights of asylum seekers and migrants alike.
Lastly, evidence suggests that detainees’ fundamental rights are more difficult to protect
than rights for applicants placed in alternatives to detention.108 For example, in Belgium, 30
complaints were lodged by detainees, as opposed to zero by persons in family units who were
not in detention. Twenty of the complaints were deemed admissible by the judicial authority
responsible for reviewing complaints by detainees.109 In Latvia, nine complaints were filed
regarding detention conditions and availability of legal assistance. Although the State found that
105
Id. at 27
Id. at 27
107
Id. at 27
108
Id. at 39
109
Id. at 39
106
32
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