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4.8.4. Alternatives to detaining applicants 

icon presenting alternatives to detaining applicants

According to CEAS, detention should be used only if other less coercive alternative measures cannot be applied effectively. Thus, Member States must ensure that the rules concerning alternatives to detention are defined in national law. Nonetheless, practices remain limited.

In March 2022, the Committee on the Rights of the Child (UNCRC) concluded in two cases that Belgium had violated the European Convention due to its failure to consider possible alternatives to detaining children in deportation cases.United Nations Committee on the Rights of the Child. (2022, March 22). Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 73/2019. CRC/C/89/D/73/2019.…; United Nations Committee on the Rights of the Child. (2023, May 30). Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 55/2018. CRC/C/89/D/55/2018.… In 2022, Individual Case Management (ICAM) regional offices of the Immigration Office’s ‘Alternatives to Detention’ Department opened in six cities to support irregularly-staying migrants towards a long-term solution, either a legal stay in Belgium or a return. However, due to the mass influx of Ukrainians after the Russian invasion, most of the ICAM coaches were deployed in the registration centre in Heysel to process requests for temporary protection.AIDA Belgium. (2023). Country Report: Belgium - 2022 Update. Edited by ECRE. Written by the Vluchtelingenwerk Vlaanderen.…

Latvia introduced the right to receive social rehabilitation at the expense of the state budget for third-country nationals and stateless persons who do not have a legal ground to stay in the country and who are detained (until the day of the removal or exit), to whom an alternative measure of detention has been applied, and foreigners for whom the operation of the return decision has been suspended or for whom the time period has been determined for voluntary departure.

In Lithuania, the Supreme Administrative Court adopted the CJEU's interpretation on the detention of asylum applicants on the sole ground that they are staying illegally in the event of a mass influx of third-country nationals. The court asserted that, in light of Lithuanian law interpreted according to the relevant directives as well as its own and CJEU case law, there was no lack of a legal basis for the application of an alternative measure to detention (see also here). Therefore, it dismissed the appeal of the Centre for the Registration of Foreigners of the State Border Guard Service under the Ministry of the Interior.

Following another court ruling initiated by the Human Rights Monitoring Institute together with the professional association of lawyers ReLex as one of the strategic cases, the Supreme Administrative Court in Lithuania stated that according to the Law on the Legal Status of Aliens, alternative measures to detention cannot last longer than 18 months. With this decision, the court changed the practice of the courts of first instance, which allowed alternative detention measures to be applied for a longer period than the maximum detention period by law of 18 months. The court stated that such a maximum term, which is established for detention, applies to all alternative measures, regardless of whether they amount to de facto detention.

The Federal Council in Switzerland announced that it will not create a legal basis for the introduction of electronic bracelets as an alternative to administrative detention in tin the Foreign Nationals and Integration Act (FNIA).State Secretariat for Migration | Staatssekretariat für Migration | Secrétariat d’État aux migrations | Segreteria di Stato della migrazione. (2022, December 16). Le Conseil fédéral ne veut pas du bracelet électronique dans le droit des étrangers [The Federal Council does not want the electronic bracelet in foreigners’ law]., it proposed to include a legal basis allowing third-country nationals to be subject to an obligation of presence.

In Malta, NGOs continued to call for alternatives to immigration detention.aditus foundation. (2022). #ThereAreAlternatives.…