The European Court found that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained.
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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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The Court found that the detention of aliens pending deportation is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention Relating to the Status of Refugees and the ECHR. Such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty into a deprivation of liberty. In that connection account should be taken of the fact that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country.
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The UN Human Rights Committee recalled that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State Party can provide appropriate justification.
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The UN Human Rights Committee recalled that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State Party can provide appropriate justification. Furthermore, judicial review of the lawfulness of detention under article 9, paragraph 4, of the International Covenant on Civil and Political Rights (ICCPR) is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.
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The UN Human Rights Committee recalled that although under article 9 of the International Covenant on Civil and Political Rights (ICCPR) the detention of aliens residing unlawfully on the State Party’s territory is not per se arbitrary, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case: the element of proportionality becomes relevant.
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