A REGIONAL TOOLKIT FOR PRACTITIONERS 1 37 5.2 THE DECISION TO DETAIN CHECKLIST This checklist relates to the decision to detain. It can be utilised both by state authorities making the decision to detain, and by those challenging the legality of such decisions. 99 What is the objective of detention in the case in question? 99 Is this objective legitimate under national law and under international and regional law (in particular, Article 5(1)(f) of the ECHR)? 99 If the objective is removal, is removal possible within a reasonable period of time? What are the barriers to removal? 99 If the objective is removal, is the person stateless, or at risk of statelessness? Is the person’s nationality unclear, or is the person a national of a country that does not cooperate with removal proceedings? 99 If any of the answers to the above question are unclear, has the person been subjected to statelessness determination? 99 Is the decision to detain applied in a manner that respects the right of the person not to be discriminated against? 99 Is the detention absolutely necessary? Can the desired outcome be achieved through less coercive means/ measures? Have all alternatives to detention properly being considered in this case? If yes, why have they been deemed unsuitable? 99 Is the decision to detain proportionate and reasonable? 99 Is the decision to detain being carried out in accordance with substantive and procedural safeguards? 99 Is legal aid provided for under national law? If yes, has the person benefited from legal aid? 99 Has the right to family and private life of the person been adequately considered? Are parents and children separated? 99 Has the potential vulnerability of the person been taken into account? Have vulnerable groups been identified? Are state agents aware of the special care vulnerable groups require? 5.3 THE ONGOING DETENTION CHECKLIST This checklist is for practitioners (detaining authorities, lawyers, NGOs etc.) concerned with ongoing detention. 99 Is there a maximum period of detention? Has this been communicated to the person in a language he/she understands? 99 Are detainees made fully aware of their rights under national, regional and international law, including their rights to challenge their treatment in detention, the conditions of detention and the legality of their detention? 99 Are there regular periodic reviews of the necessity for the continuation of detention before a court or an independent body, which the person and his/her representative has the right to attend? 99 If detention is for the purpose of removal, is removal (including efforts of documentation) being pursued by the detaining authority with due diligence, and have all the necessary steps been taken to ensure a speedy removal? 99 Has the individual been issued the necessary travel documents to ensure removal? 99 Has the removal destination been established? Have the authorities of said destination state been informed? Have they agreed to receive or readmit the individual being removed? 99 Is the prospect of removal (and consequently the legality of detention) periodically reviewed? If yes, are detainees released when it becomes evident that their removal will not be possible during a reasonable time (and within the time limit if there is one) or are they routinely kept in detention until the time limit is reached? 99 Have removal efforts revealed that an individual formerly believed to have a nationality, is stateless or at risk of statelessness? If yes, has this resulted in their release? 99 Are the detention facilities in keeping with the nonpunitive nature of immigration detention? Can they comfortably hold the individual in question? 99 Have the officers who run the detention facilities received the necessary training to ensure that they treat all detainees with dignity and in accordance with their rights? In particular, that they do not engage in torture and inhuman, degrading or cruel treatment of detainees? 99 Do detention facilities allow detainees to be in regular contact with family, friends, legal advisors, and civil society organisations and to visit them? 99 Are there regular / periodic individual vulnerability assessments available in detention facilities? 99 Is medical assistance (including psychological assistance) available in the detention facility? 5.4 THE POST-RELEASE CHECKLIST 99 This checklist is for practitioners (social welfare officers, lawyers, NGOs etc.) who engage with and provide services to released detainees. 99 If the purpose of the detention cannot be fulfilled and the person is released, what legal status is provided to him/her under national law? 99 Do released persons have the right to work or to benefit from social welfare? 99 If released persons are stateless, will they be provided with necessary identity documentation and stay rights? 99 Under national law, is there a possibility of re-detention? 99 If yes, what steps can be taken to protect the individual from being re-detained unless due to a material change in circumstances, safe return is now possible? 99 If re-detention does occur, is the cumulative time spent in detention counted?