Detention and alternatives to detention in international protection and return procedures in Luxembourg

The main objective of this study of the European Migration Network is to provide objective and reliable information about the usage of detention and alternatives to detention in international protection and return procedures in Luxembourg.

Luxembourgish legislation, namely the amended Law of 29 August 2008 on Free Movement of Persons and Immigration (Immigration Law) and the Law of 18 December 2015 on International Protection and Temporary Protection (Asylum Law), foresees three alternatives to detention:

- Alternative 1: Reporting obligations, which includes the obligation to surrender a passport, travel document or identity document;
- Alternative 2: Home custody (+ electronic monitoring, if necessary);
- Alternative 3: Deposition of a financial guarantee of 5.000€.

In principle, the assessment between detention or alternatives to detention is made at the same time as when the grounds for detention are considered, as long as the Directorate of Immigration, as the responsible authority, has all the necessary information to decide if an alternative to detention can be ordered. Furthermore, the possibility to impose an alternative to detention is in principle systemically considered, as both relevant laws foresee that the detention decision is ordered in writing by the Minister on the basis of a case-by-case assessment, where necessary and if other less coercive measures cannot be effectively applied.

Grounds for detention are generally rejected in favour of an alternative to detention if the person concerned falls within the category of vulnerable groups and if person is able to proof effective guarantees of representation to prevent the risk of absconding. This latter obligation on the third-country national to revert the legal presumption that there is a risk of absconding remains the main challenge because effective guarantees of representation are not defined by law. This is particularly challenging in the context of return procedures, where this legal presumption exists in nearly all cases where a third-country national has no valid identity, travel or residence documents. In the absence of such effective guarantees of representation, the Minister in charge of Immigration and Asylum generally does not make the decision to apply an alternative to detention.

Consequently, the research in the context of this study has shown that alternatives to detention are only rarely used in Luxembourg, with the important exception of home custody in the Emergency Housing Structure of Kirchberg (‘Structure d’hébergement d’urgence Kirchberg’ –
SHUK). The SHUK serves as a semi-open return facility for applicants for international protection and irregularly staying third-country nationals whose fingerprints have already been registered in Eurodac by another Member State and are therefore likely to be transferred to that Member State, in accordance with the Dublin III Regulation. A placement at the SHUK corresponds to home custody.

The rare use of alternatives to detention also results in the fact that there is generally not much data available in this regard, with the important exception of home custody in the SHUK, which is more widely used.