A/HRC/23/46
the person’s physical state or mental capacity, or technical reasons such as lack of transport
capacity, or failure of the removal due to lack of identification. When removal has been
postponed, Member States should ensure family unity, emergency health care and essential
treatment of illness and access to basic education for children, and that the special needs of
vulnerable persons are taken into account.
92.
Art. 15 provides that detention for the purpose of removal shall only be used if other
sufficient but less coercive measures cannot be applied effectively in a specific case,
particularly when there is a risk of absconding, or the person concerned avoids or hampers
the preparation of return or the removal process.
93.
Detention shall only be ordered by administrative or judicial authorities, in writing
with reasons being given in fact and in law, and must be subject to speedy judicial review
upon request. The third-country national concerned shall be released immediately if the
detention is not lawful. The Directive further prescribes a maximum period of detention of
6 months, which may be extended exceptionally to maximum 18 months. When no
reasonable prospect of removal exists, a person shall be released immediately.
94.
Art. 16 imposes minimum conditions of detention. Detention shall take place as a
rule in specialized detention facilities. Third-country nationals in detention shall be allowed
- on request - to establish in due time contact with legal representatives, family members
and competent consular authorities, and particular attention shall be paid to the situation of
vulnerable persons. Emergency health care and essential treatment of illness shall be
provided. Relevant and competent national, international and nongovernmental
organisations and bodies shall have the possibility to visit detention facilities.
95.
Art. 17 limits the detention of children and families, who should only be detained as
a measure of last resort and for the shortest appropriate period of time. The best interests of
the child shall be a primary consideration in the context of the detention of children p ending
removal.
96.
A Commission Communication evaluating the implementation of the Return
Directive is scheduled for December 2013.
2.
The European Return Fund
97.
In its Decision 575/2007/EC, the European Parliament and the Council established
the European Return Fund as part of the General Programme “Solidarity and Management
of Migration Flows”. The general objective of the fund is to support the efforts made by
Member States to improve the management of return through the use of the concept of
integrated management and by providing for joint actions to be implemented by Member
States or national actions that pursue Community objectives under the principle of
solidarity, taking account of Community legislation in this field and in full compliance with
fundamental rights. The actions eligible for support include the facilitation of voluntary
returns and the simplification and implementation of enforced returns.
98.
The European Return Fund provides for significant funding (630 million euros over
the period 2007-13) to support the efforts made by EU States for returns. It will be absorbed
by the future Asylum and Migration Fund.
3.
Readmission Agreements
99.
Article 79.3 of the Treaty on the Functioning of the European Union provides that
the EU may conclude agreements with third countries for the readmission to their countries
of origin or provenance of third-country nationals who do not or who no longer fulfil the
conditions for entry, presence or residence in the territory of one of the Member States.
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