Alternatives to detention for asylum seekers
and people in return procedures
For asylum and return (i.e. expulsion) procedures to be implemented effectively, people need to
be at the disposal of the authorities so that any measure requiring their presence can be taken
without delay. To achieve this, EU Member States may decide to hold people in closed facilities.
Less intrusive measures, which are usually referred to as alternatives to detention, reduce the
risk that deprivation of liberty is resorted to excessively.
In light of the significant number of asylum seekers and migrants reaching the EU’s external
borders and moving onward to other EU Member States, there is a danger that deprivation of
liberty may be resorted to excessively and in cases where it is not necessary. With this
compilation of legal instruments and other resources, FRA seeks to provide guidance to policy
makers and practitioners on the use of non-custodial measures for asylum seekers and people
in return procedures.
According to EU law, as well as Article 5 of the European Convention of Human Rights,
deprivation of liberty for immigration-related reasons can only be used as a measure of last
resort. An assessment needs to be made in each individual case to determine whether all the
preconditions required to prevent arbitrary detention are fulfilled. Under Article 8 of the
Reception Conditions Directive 2013/33/EU and Article 15 of the Return Directive 2008/115/EC,
detention must not be used when less intrusive measures are sufficient to achieve the
legitimate objective pursued.
Most of the wide array of alternatives to detention imply some restrictions on freedom of
movement and/or other fundamental rights. Any restrictions to these rights must be in
conformity with Article 52 (1) of the EU Charter of Fundamental Rights. This means that
limitations must be provided for by law, must genuinely meet objectives of general interest
recognised by the Union or the need to protect the rights and freedoms of others, respect the
essence of the right, and be proportionate. Alternatives to detention must, therefore, be
distinguished from unconditional release from detention or unrestricted placement in open
facilities.
The alternatives, many of which can be used in combination with each other, can be broadly
grouped under the following categories:
Obligation to surrender passports or travel documents
This obligation may be imposed alone or together with other alternatives, such as the duty to
stay in a particular location or area. It is a soft measure that essentially serves to ensure that
valid identity and travel documents are not lost or destroyed during the time required to
prepare the return and removal process.
Residence restrictions
Such restrictions impose the duty of remaining at a particular address or residing within a
specific geographical area, often combined with regular reporting requirements. The
designated places can be open or semi-open facilities run by the government or NGOs, as well
as hotels, hostels or private addresses. The regime imposed can vary, but people generally have