Summary

Starting from 1999, the Member States have conferred competence to the European Union for regulating migration, international protection and combating illegal migration. Within this competence, the European Parliament and the Council of the European Union have adopted directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals based on Article 63(3b) of the Treaty establishing the European Community (hereinafter: Return Directive). On 24 December 2010, the Obligation to Leave and Prohibition on Entry Act Amendment Act entered into force in Estonia, under which the Return Directive was transposed.

The Return Directive provides inter alia possibilities to apply different motivating supervisory measures towards an alien (Articles 7, 8, 15). Whereas the most intensive measure is the detention of a person regulated in Article 15, since application of this measure means notably restricting the person’s fundamental right to freedom.

This article tries to find an answer to the question whether the standards for the detention of aliens, contained in the Obligation to Leave and Prohibition on Entry Act, are in conformity with the detention provisions in the Return Directive. The article focuses, above all, on aspects that can be interpreted in several different ways when transposing the directive. Consequently, the author discusses the objectives of the institute when detaining aliens, the basis for detention arising from the objectives and the possibilities of stipulating these on the national level, and finally, and in greater detail, the risk of escape as one of the complications (or simplicities) in applying the grounds for detention.