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Key Words Archives: Financial guarantee / bail

Y.M.O v. The Principal Immigration Officer

The appellant was rescued and disembarked in Malta in July 2021 and declared that he is a minor upon arrival. He was directly detained after disembarkation and was rejected from his application for international protection in October 2021. The appellant was assessed to be an adult following an age assessment procedure but filed an appeal against the decision from the Agency for the Welfare of Asylum Seekers (AWAS).

The appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures were never assessed in his case since he was from a country where returns are feasible and that due consideration should be given to the fact that he is a minor.

The Board noted that the removal order could not be decided upon at this stage since there was a pending age assessment appeal before Division II. The Board rejected the arguments of the appellant and considered that since this is detention on a removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.

The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have the care and custody of the appellant is to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.

However, the applicant was not released since the competent authority never issued a care and custody order.

Source: PDF with the case

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A.M. v. The Principal Immigration Officer

The applicant was a Bangladeshi national who was rejected from his asylum application and served with a removal order before he was referred for an age assessment procedure by the competent authorities and assessed as an adult following a bone test despite providing his birth certificate. He appealed this decision and challenged the results of the bone test as being inaccurate.

In the meantime, the appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures was never assessed in his case and that due consideration should be given to the fact that he is a minor assessed as an adult through an inaccurate procedure.

The Board noted the physical appearance suggesting the applicant is young and considered that there are sufficient grounds to believe that the appellant could be a minor and should therefore be released pending the result of the age assessment appeal. The Board considered that since this was an appeal on the removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.

The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have care and custody of the appellant was to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.

However, the applicant was never released since his appointed representative (legal guardian) refused to act as the guarantor.

Source: PDF with the case

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Steering Committee for Human Rights (CDDH), Practical Guidance on Alternatives to Immigration Detention: Fostering Effective Results

This Practical Guidance was adopted by the Steering Committee for Human Rights of the Council of Europe at its 91st meeting (18-21 June 2019). Its main focus is on the practical aspects of applying alternatives to detention, considering also the fact that in this field a ‘one size fits all’ approach is not possible. The Guidance covers the legal framework of the alternatives to detention system, the types of alternatives and the ways to make them effective.

https://www.coe.int/fr/web/human-rights-intergovernmental-cooperation/-/alternatives-to-immigration-detention-fostering-effective-results

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General comment No. 5 (2021) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights (advanced unedited version)

The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CMW/GEC/9459&Lang=en

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CJEU, Hassen El Dridi case, Case no. C-61/11 PPU, 28 April 2011

The CJEU found that the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members States for returning illegally staying third-country nationals must be interpreted as precluding a Member State’s legislation which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that they remain, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62011CJ0061

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General comment No. 35 (2014) of the UN Human Rights Committee (CCPR) on Article 9: Liberty and Security of a person

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f35&Lang=en

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