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UK regulations assessing individual risk of absconding
- United Kingdom
- In response to a decision in the Court of Justice of the European Union (CJEU) relating to a case in Czech Republic, the United Kingdom introduced "The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017". The case relates to an Iraqi male and his two minor children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act. The court held that the Czech legislation contained no objective criteria defining “risk of absconding” as required by Article 2 (n) of the Dublin Regulation. Therefore, the legislation under Article 28 of the Dublin Regulation was not applicable in the Czech Republic, and the decision to detain the applicants was unlawful. The court referred in its reasoning to similar judgments of the German and Austrian highest courts.
Japan - law allows for provisional release
- Although the law allows detainees to apply for provisional release at any time, in practice the immigration department tend to only grant this after a person has been detained for an average of a year
United States of America individual assessments
- United States of America
- Individualised custody assessments are undertaken at the moment of intake. Flight risk, danger to the community, specific vulnerabilities (pregnancy, torture survivors and victims of past persecution) are considered. All factors inform – but not necessarily determine – both decisions to detain or release and a security classification within the detained population
UK guidelines for officers regarding factors to consider in decisions to detain
- United Kingdom
- 55.3.1. Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
- What is the likelihood of the person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
- Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)
- Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave, etc)
- What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
- Is the subject under 18?;
- Does the subject have a history of torture?;
- Does the subject have a history of physical or mental ill health?
Canada - Guidance for officers to ensure individual case factors considered when assessing flight risk
- Citizenship and Immigration Canada, Enforcement Manual 20 – Detention Section 5.7 (p. 10-11): R245 outlines the factors to be taken into account when assessing flight risk. This non-exhaustive list includes: voluntary compliance with any previous departure order; voluntary compliance with any previously required appearance at an immigration or criminal proceeding; previous compliance with any conditions imposed in respect of entry, release or a stay of removal; any previous avoidance of examination or escape from custody, or any previous attempt to do so.