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Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

On 07/09/2022 in

The “Return Directive”, with implementation deadline of 24 December 2010, sets up a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU country, and the related procedural safeguards. It establishes a legal obligation for Member States to take due account of the best interests of the child (Article 5) and to use immigration detention of children and families only as a measure of last resort and for the shortest appropriate period of time (Articles 15 and 17).

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UNHCR, Refugee Children: Guidelines on Protection and Care

On 07/09/2022 in

The UNHCR Guidelines aim to define the principles and practical measures for the protection and assistance of refugee children. UNHCR argues that because detention can be very harmful to refugee children, it must be used only as a measure of last resort and for the shortest appropriate period of time. The same principle applies to alternative accommodation in which children are held under prison-like conditions. Families must be kept together at all times.

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Khan v. France, ECtHR, Application No. 12267/16, Judgment of 28 February 2019

On 07/09/2022 in

In its judgment the ECtHR reiterated the finding that States Parties have a positive obligation to protect and take care of unaccompanied migrant children under Article 3 ECHR and Article 20 CRC. In cases concerning foreign minors, whether accompanied or unaccompanied, the child’s situation of extreme vulnerability is the decisive factor and it takes precedence over considerations relating to their status as an irregular migrant.

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CJEU, FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, Joined Cases no. C-924/19 and C-925/19 PPU, 14 May 2020

On 07/09/2022 in

Directive 2008/115 and Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection must be interpreted as meaning that the obligation imposed on a third-country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national’s movements are limited and monitored, and which they cannot legally leave voluntarily, in any direction whatsoever, appears to be a deprivation of liberty, characterised by ‘detention’ within the meaning of those directives.

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CJEU, Bashir Mohamed Ali Mahdi case, Case no. C-146/14 PPU, 5 June 2014

On 05/09/2022 in

The CJEU said that immigration related detention is justified only in order to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. Only the judicial authority should deal with the decisions concerning the detention of a third-country national (for example an extension) and it should do so following a thorough assessment of all relevant facts and circumstances in the individual case.

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