Despite the transposition of the Directive 2008/115/EC
into national law, undocumented migrants are still detained without respect of the
new legal provisions. The government has not established a solid framework
along with guidelines as to the implementation of the provisions of the
Directive. Therefore, some decisions are arbitrary and depend completely on the
will of the Migration Officer, a civil servant, without a no political supervision.
The Law for Legal Aid [8(I)/2012] was amended in 2012, in order to provide to
undocumented migrants the possibility of legal aid in applying against
detention and deportation orders. It is important to note here, however, that
legal aid may be only granted to challenge the legality of detention, through
recourse, and not the legality of the duration of detention, which can only be
challenged through a Habeas Corpus application. In addition, legal aid may be provided
only if the applicants prove that there is a possibility of success and that
they do not have sufficient resources to cover the expenses of the recourse on
their own.
