64 Amendments of Nicolas BAY related to 2018/0329(COD)
Amendment 125 #
Proposal for a directive
Recital 2
Recital 2
(2) An effective and fair return policy is an essential part of the Union's approach to better manage immigration in all aspects, as reflected in the European Agenda on Migration of May 201511 . __________________ 11 COM(2015) 285 final.
Amendment 127 #
Proposal for a directive
Recital 3
Recital 3
(3) On 28 June 2018, in its conclusions, the European Council underlined the necessity to significantly step up the effective return of irregular migrants, and welcomed the intention of the Commission to make legislative proposals for a more effective and coherent European return policyllegal immigrants.
Amendment 130 #
Proposal for a directive
Recital 4
Recital 4
(4) That European return policy should be based on common standards, for persons to be returned in a humane manner and with full respect for their fundamentalhuman rights and dignity, as well as international law, including refugee protection and human rights obligations. Clear, transparent and fair rules need to be established to provide for an effective return policy which serves as a deterrent to irregular migration and ensures coherence with and contributes to the integrity of the Common European Asylum System and the legal llegal immigration system.
Amendment 130 #
Proposal for a directive
Recital 3
Recital 3
Amendment 139 #
Proposal for a directive
Recital 4
Recital 4
(4) That European return policy should be based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity , as well as international law, including refugee protection and human rights obligations. Clear, transparent and fair rules need to be established to provide for an effective return policy which serves as a deterrent to irregularllegal migration and ensures coherence with and contributes to the integrity of the Common European Asylum System and the legal migration system. (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)
Amendment 140 #
Proposal for a directive
Recital 7
Recital 7
(7) The link between the decision on ending of the legal stay of a third-country national and the issuing of a return decision should be reinforced in order to reduce the risk of absconding and the likelihood of unauthorised secondary movements, in particular when the third-country national poses a risk to public policy, public security or national security, and when he/she has been convicted for a criminal offence, even with a non- definitive sentence. It is necessary to ensure that a return decision is issued immediately after the decision rejecting or terminating the legal stay, or ideally in the same act or decision. That requirement should in particular apply to cases where an application for international protection is rejected, provided that the return procedure is suspended until that rejection becomes final and pending the outcome of an appeal against that rejection.
Amendment 159 #
Proposal for a directive
Recital 9
Recital 9
(9) It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.
Amendment 163 #
Proposal for a directive
Recital 12
Recital 12
(12) To reinforce the effectiveness of the return procedure, clear responsibilities for third-country nationals should be established, and in particular the obligation to cooperate with the authorities at all stages of the return procedure, including by providing the information and elements that are necessary in order to assess their individual situation. At the same time, it is necessary to ensure that third-country nationals are informed of the consequences of not complying with those obligations, in relation to the determination of the risk of absconding, the granting of a period for voluntary departure and the possibility to impose detention, and to the access to programmes providing logistical, financial and other material or in-kind assistance.
Amendment 167 #
Proposal for a directive
Recital 13
Recital 13
(13) Where there are no reasons to believe that the granting of a period for voluntary departure would undermine the purpose of a return procedure, voluntary return should be preferred over forced return and an appropriate period for voluntary departure of up to thirty days, depending in particular on the prospect of return, should be granted. A period for voluntary departure should not be granted where it has been assessed that third- country nationals pose a risk of absconding, have had a previous application for legal stay dismissed as fraudulent or manifestly unfounded, or they pose a risk to public policy, public security or national security, or they have been convicted for a criminal offence, even with a non-definitive sentence. An extension of the period for voluntary departure should be provided for when considered necessary because of the specific circumstances of an individual case.
Amendment 172 #
Proposal for a directive
Recital 12
Recital 12
(12) To reinforce the effectiveness of the return procedure, clear responsibilities for third-country nationals should be established, and in particular the obligation to cooperate with the authorities at all stages of the return procedure, including by providing the information and elements that are necessary in order to assess their individual situation. The determination of their real age, through bone or dental tests, is vital in order to verify the truth of their statements on this subject, making it possible to assess their good faith, and to protect genuine unaccompanied minors by distinguishing between them and those making false claims. At the same time, it is necessary to ensure that third-country nationals are informed of the consequences of not complying with those obligations, in relation to the determination of the risk of absconding, the granting of a period for voluntary departure and the possibility to impose detention, and to the access to programmes providing logistical, financial and other material or in-kind assistance.
Amendment 197 #
Proposal for a directive
Recital 19
Recital 19
(19) In cases where the principle of non- refoulement is not at stake, appeals against a return decision should not have an automatic suspensive effect. The judicial authorities should be able to temporarily suspend the enforcement of a return decision in individual cases for other reasons, either upon request of the third- country national concerned or acting ex officio, where deemed necessary. Such decisions should, as a rule, be taken within 48 hours. Where justified by the complexity of the case, judicial authorities should take such decision without undue delay.
Amendment 204 #
Proposal for a directive
Recital 16
Recital 16
(16) The deadline for lodging an appeal against decisions related to return should provide enough time to ensure access to an effective remedy, while taking into account that long deadlines can have a detrimental effect on return procedures. To avoid possible misuse of rights and procedures, a maximum period not exceeding fivthree days should be granted to appeal against a return decision. This provision should only apply following a decision rejecting an application for international protection which became final, including after a possible judicial review.
Amendment 206 #
Proposal for a directive
Recital 21
Recital 21
(21) The necessary legal aid should be made available , upon request and provided that the specific case has not been deemed inadmissible, to those who lack sufficient resources. National legislation should establish a list of instances where legal aid is to be considered necessary.
Amendment 210 #
Proposal for a directive
Recital 17
Recital 17
(17) The appeal against a return decision that is based on a decision rejecting an application for international protection which was already subject to an effective judicial remedy should take place before a single level of jurisdiction only, since the third-county national concerned would have already had his or her individual situation examined and decided upon by a judicial authority in the context of the asylum procedure.(Does not affect English version.)
Amendment 213 #
Proposal for a directive
Recital 18
Recital 18
Amendment 224 #
Proposal for a directive
Recital 28
Recital 28
(28) Detention should be imposed, following an individual assessment of each case, where there is a risk of absconding, where the third-country national avoids or hampers the preparation of return or the removal process, or when the third country national concerned poses a risk to public policy, public security or national security, or when he/she has been convicted for a criminal offence, even with a non- definitive sentence.
Amendment 225 #
Proposal for a directive
Recital 19
Recital 19
(19) In cases where the principle of non-refoulement is not at stake, aAppeals against a return decision should not have an automatic suspensive effect. The judicial authorities should be able to temporarily suspend the enforcement of a return decision in individual cases for other reasons, either upon request of the third- country national concerned or acting ex officio, where deemed necessary. Such decisions should, as a rule, be taken within 48 hours. Where justified by the complexity of the case, judicial authorities should take such decision without undue delay.
Amendment 231 #
Proposal for a directive
Recital 20
Recital 20
(20) To improve the effectiveness of return procedures and avoid unnecessary delays, without negatively affecting the rights of the third-country nationals concerned, the enforcement of the return decision should not be automatically suspended in cases where the assessment of the risk to breach the principle of non- refoulement already took place and judicial remedy was effectively exercised as part of the asylum procedure carried out prior to the issuing of the related return decision against which the appeal is lodged, unless the situation of the third- country national concerned would have significantly changed since.
Amendment 237 #
Proposal for a directive
Recital 30
Recital 30
(30) This Directive should not preclude Member States from laying down effective, proportionate and dissuasive penalties and criminal penalties, including imprisonment, in relation to the infringements of immigration rules, provided that such penalties are compatible with the objectives of this Directive, do not compromise the application of this Directive and are in full respect of fundamental rights.
Amendment 247 #
Proposal for a directive
Recital 25
Recital 25
(25) When an illegally staying third- country national is detected during exit checks at the external borders, it may be appropriateis necessary to impose an entry ban in order to prevent future re-entry and therefore to reduce the risks of illegal immigration. When justified, following an individual assessment and in application of the principle of proportionality, aAn entry ban mayshall be imposed by the competent authority without issuing a return decision in order to avoid postponing the departure of the third- country national concerned.
Amendment 251 #
Proposal for a directive
Recital 27
Recital 27
(27) The use of detention for the purpose of removal should be subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justifHowever, in viedw only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficientf the illegal situation of the individuals concerned by return, detention must always remain an instrument available to Member States.
Amendment 261 #
Proposal for a directive
Recital 28
Recital 28
(28) Detention should be imposed, following an individual assessment of each case, where there is a risk of absconding, where the third-country national does not cooperate with all the stages in the removal process, avoids or hampers the preparation of return or the removal process, or when the third country national concerned poses a risk to public policy, public security or national security.
Amendment 266 #
Proposal for a directive
Recital 29
Recital 29
(29) Given that maximum detention periods in some Member States are not sufficient to ensure the implementation of return, a maximum period of detention between three and six months, which may be prolonged, should be established in order to provide for sufficient time to complete the return procedures successfully, without prejudice to the established safeguards ensuring that detention is only applied when necessary and proportionate and for as long as removal arrangements are in progress.
Amendment 267 #
Proposal for a directive
Recital 36
Recital 36
(36) It is necessary and proportionate to ensure that a third country national who was already detained during the examination of his or her application for international protection as part of the asylum border procedure may be kept in detention in order to prepare the return and/or carry out the removal process, once his or her application has been rejected. To avoid that a third country national is automatically released from detention and allowed entry into the territory of the Member State despite having been denied a right to stay, a limited period of time is needed in order to try to enforce the return decision issued at the border. The third- country national concerned may be detained in the context of the border procedure for a maximum period of foursix months and as long as removal arrangements are in progress and executed with due diligence. That period of detention should be without prejudice to other periods of detention established by this Directive. Where it has not been possible to enforce return by the end of the former period, further detention of the third-country national may be ordered under another provision of this Directive and for the duration provided for therein.
Amendment 271 #
Proposal for a directive
Recital 38
Recital 38
(38) Establishing return management systems in Member States contributes to the efficiency of the return process. Each national system should provide timely information on the identity and legal situation of the third country national that are relevant for monitoring and following up on individual cases. To operate efficiently and in order to significantly reduce the administrative burden, such national return systems should be linked to the Schengen Information System to facilitate and speed up the entering of return-related information, as well as to the central system established by the European Border and Coast Guard Agency in accordance with Regulation (EU) …/… [EBCG Regulation].
Amendment 275 #
Proposal for a directive
Recital 40
Recital 40
(40) The Union provides financial and operational support in order to achieve an effective implementation of this Directive. Member States should make best use of the available Union financial instruments, programmes and projects in the field of return, in particular under Regulation (EU) …/… [Regulation establishing the Asylum and Migration Fund], as well as of the operational assistance by the European Border and Coast Guard Agency according to Regulation (EU) …/… [EBCG Regulation]. Such support should be used in particular for establishing return management systems and programmes for providing logistical, financial and other material or in-kind assistance to support the return – and where relevantdeemed necessary the reintegration – of illegally staying third- country nationals.
Amendment 284 #
Proposal for a directive
Recital 46
Recital 46
(46) The purpose of an effective implementation of the return of third- country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member States, in accordance with this Directive, is an essential component of the comprehensive efforts to tackle irregular llegal immigration and represents an important reason of substantial public interest.
Amendment 307 #
Proposal for a directive
Recital 35
Recital 35
(35) An appeal against a return decision taken in the context of the border procedure should not have an automatic suspensive effect in cases where there is a risk of breach of the principle of non- refoulement, there has been a significant change in the situation of the third- country national concerned since the adoption under the asylum border procedure of the decision rejecting his or her application for international protection, or if no judicial remedy was effectively exercised against the decision rejecting his or her application for international protection adopted under the asylum border procedure.
Amendment 308 #
Proposal for a directive
Article 3 – paragraph 1 – point 9 a (new)
Article 3 – paragraph 1 – point 9 a (new)
9a. 'principle of non-refoulement' means the prohibition of expulsion or return according to Article 33 of the 1951 Convention Relating to the Status of Refugees.
Amendment 315 #
Proposal for a directive
Recital 38
Recital 38
(38) Establishing return management systems in Member States contributes to the efficiency of the return process. Each national system should provide timely information on the identity and legal situation of the third country national that are relevant for monitoring and following up on individual cases. To operate efficiently and in order to significantly reduce the administrative burden, such national return systems should be linked to the Schengen Information System, to Eurodac and to all the databases used to identify third country nationals, to facilitate and speed up the entering of return-related information, as well as to the central system established by the European Border and Coast Guard Agency in accordance with Regulation (EU) …/… [EBCG Regulation].
Amendment 321 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. The objective criteria referred to in point 7 of Article 3 shall include at least one of the following criteria:
Amendment 329 #
Proposal for a directive
Recital 44
Recital 44
(44) Application of this Directive is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967.
Amendment 334 #
Proposal for a directive
Recital 46
Recital 46
(46) The purpose of an effective implementation of the return of third- country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member States, in accordance with this Directive, is an essential component of the comprehensive efforts to tackle irregular migration, based on the principle of deterrence, and represents an important reason of substantial public interest.
Amendment 339 #
Proposal for a directive
Recital 47
Recital 47
(47) Member States' return authorities need to process personal data to ensure the proper implementation of return procedures and the successful enforcement of return decisions. The third countries of return are often not the subject of adequacy decisions adopted by the Commission under Article 45 of Regulation (EU) 2016/679 of the European Parliament and of the Council18, or under Article 36 of Directive (EU) 2016/68019, and have often not concluded or do not intend to conclude a readmission agreement with the Union or otherwise provide for appropriate safeguards within the meaning of Article 46 of Regulation (EU) 2016/679 or within the meaning of the national provisions transposing Article 37 of Directive (EU) 2016/680. Despite the extensive efforts of the Union in cooperating with the main countries of origin of illegally staying third-country nationals subject to an obligation to return, it is not always possible to ensure such third countries systematically fulfil the obligation established by international law to readmit their own nationals. Policies involving diplomatic and economic pressure should be applied in order to encourage them to do so. Readmission agreements, concluded or being negotiated by the Union or the Member States and providing for appropriate safeguards for the transfer of data to third countries pursuant to Article 46 of Regulation (EU) 2016/679 or pursuant to the national provisions transposing Article 36 of Directive (EU) 2016/680, cover a limited number of such third countries. In the situation where such agreements do not exist, personal data should be transferred by Member States' competent authorities for the purposes of implementing the return operations of the Union, in line with the conditions laid down in Article 49(1)(d) of Regulation (EU) 2016/679 or in the national provisions transposing Article 38 of Directive (EU) 2016/680. _________________ 18Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119 4.5.2016, p. 1 p. 1. 19 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
Amendment 351 #
Proposal for a directive
Article 6 – paragraph 1 – point k
Article 6 – paragraph 1 – point k
(k) existence of conviction for a criminal offence, even with a non- definitive sentence, including for a serious criminal offence in another Member State;
Amendment 370 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 2
Article 6 – paragraph 2 – subparagraph 2
However, Member States shall establish that a risk of absconding is presumed in an individual case, unless proven otherwise, when one of the objective criteria referred to in points (k), (l), (m), (n), (o) and (p) of paragraph 1 is fulfilled.
Amendment 380 #
Proposal for a directive
Article 4 – paragraph 4 – point b
Article 4 – paragraph 4 – point b
Amendment 382 #
Proposal for a directive
Article 5 – title
Article 5 – title
5 Non-refoulement, bBest interests of the child, family life and state of health
Amendment 386 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
Amendment 387 #
Proposal for a directive
Article 7 – paragraph 1 – point c
Article 7 – paragraph 1 – point c
(c) the duty to remain presenton call and available throughout the procedures;
Amendment 391 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. The objective criteria referred to in point 7 of Article 3 shall include at least the following criteria and any other criterion deemed useful by Member States:
Amendment 427 #
Proposal for a directive
Article 8 – paragraph 6 – subparagraph 1
Article 8 – paragraph 6 – subparagraph 1
Member States shall issue a return decision immediately after the adoption of a decision ending a legal either illegal stay of a third- country national, including a decision not granting a third-country national refugee status or subsidiary protection status in accordance with Regulation (EU) …/… [Qualification Regulation].
Amendment 448 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the duty to provide all the elements that are necessary for establishing or verifying identity, including age through bone or dental tests;
Amendment 462 #
Proposal for a directive
Article 9 – paragraph 4 – point c a (new)
Article 9 – paragraph 4 – point c a (new)
Amendment 475 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. The elements referred to in point (a) of paragraph 1 shall include the third- country nationals’ statements and documentation in their possession regarding the identity, nationality or nationalities, age and means of verifying the declared age through a bone or dental test, country or countries and place or places of previous residence, travel routes and travel documentation, and any other element that Member States may deem useful.
Amendment 500 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States may impose an entry or stay ban, which does not accompany a return decision, to a third- country national who has been illegally staying in the territory of the Member States and whose illegal stay is detected in connection with border checks carried out at exit in accordance with Article 8 of Regulation (EU) 2016/399, where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.
Amendment 518 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 2
Article 14 – paragraph 3 – subparagraph 2
Amendment 530 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 3
Article 14 – paragraph 3 – subparagraph 3
The granting of such assistance, including its kind and extent, shall be in any case subject to the cooperation of the third- country national concerned with the competent authorities of the Member States as provided for in Article 7 of this Directive.
Amendment 555 #
Proposal for a directive
Article 16 – paragraph 3 – subparagraph 1
Article 16 – paragraph 3 – subparagraph 1
The enforcement of the return decision shall be automatically suspended during the period for bringing the appeal at first instance and, where that appeal has been lodged within the set period, during the examination of the appeal, where there is a risk to breach the principle of non- refoulement. Should a further appeal against a first or subsequent appeal decision be lodged, and in all other cases, the enforcement of the return decision shall not be suspended unless a court or tribunal decides otherwise taking into due account the specific circumstances of the individual case upon the applicant’s request or acting ex officio.
Amendment 562 #
Proposal for a directive
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
Amendment 567 #
Proposal for a directive
Article 16 – paragraph 3 – subparagraph 3 – point b a (new)
Article 16 – paragraph 3 – subparagraph 3 – point b a (new)
(ba) the return decision is the consequence of the decision on ending the legal stay that is aggravated by at least one of the following circumstances: - risk of absconding; - application for legal stay dismissed as fraudulent or manifestly unfounded; - the third-country national poses a risk to public policy, public security or national security.
Amendment 589 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States mayshall impose an entry ban, which does not accompany a return decision, to a third-country national who has been illegally staying in the territory of the Member States and whose illegal stay is detected in connection with border checks carried out at exit in accordance with Article 8 of Regulation (EU) 2016/399, where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.
Amendment 641 #
Proposal for a directive
Article 16 – paragraph 3 – subparagraph 1
Article 16 – paragraph 3 – subparagraph 1
The enforcement of the return decision shall be automatically suspended during the period for bringing the appeal at first instance and, where that appeal has been lodged within the set period, during the examination of the appeal, where there is a risk to breach the principle of non- refoulement. Should a further appeal against a first or subsequent appeal decision be lodged, and in all other cases, the enforcement of the return decision shall not be suspended unless a court or tribunal decides otherwise taking into due account the specific circumstances of the individual case upon the applicant’s request or acting ex officio.
Amendment 649 #
Proposal for a directive
Article 22 – paragraph 7 – subparagraph 2
Article 22 – paragraph 7 – subparagraph 2
Detention shall be for as short a period as possible, which shall in no case exceed foursix months. It may be maintained only as long as removal arrangements are in progress and executed with due diligence.
Amendment 658 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 2
Article 16 – paragraph 4 – subparagraph 2
Member States shall grant a period not exceeding fivthree days to lodge an appeal against a return decision when such a decision is the consequence of a final decision rejecting an application for international protection taken in accordance with Regulation (EU) …/… [Asylum Procedure Regulation].
Amendment 685 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 3
Article 18 – paragraph 1 – subparagraph 3
Amendment 690 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
Amendment 693 #
Proposal for a directive
Article 18 – paragraph 5
Article 18 – paragraph 5
5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a maximum period of detention of not less than three months and not more than six monthstheir choosing.
Amendment 697 #
Proposal for a directive
Article 18 – paragraph 6
Article 18 – paragraph 6
Amendment 746 #
Proposal for a directive
Article 22 – paragraph 5
Article 22 – paragraph 5
5. Member States shall grant a period of time not exceeding 48 hours to lodge an appeal against the return decisions based on a, which shall always be issued at the same time as the final decision rejecting an application for international protection taken by virtue of Article 41 of Regulation (EU) …/… [Asylum Procedure Regulation] at the border or in transit zones of the Member States.
Amendment 747 #
Proposal for a directive
Article 22 – paragraph 5
Article 22 – paragraph 5
5. Member States shall grant a period not exceeding 248 hours to lodge an appeal against the return decisions based on a final decision rejecting an application for international protection taken by virtue of Article 41 of Regulation (EU) …/… [Asylum Procedure Regulation] at the border or in transit zones of the Member States.
Amendment 748 #
Proposal for a directive
Article 22 – paragraph 6 – subparagraph 1
Article 22 – paragraph 6 – subparagraph 1
Amendment 750 #
Proposal for a directive
Article 22 – paragraph 6 – subparagraph 2
Article 22 – paragraph 6 – subparagraph 2
Amendment 751 #
Proposal for a directive
Article 22 – paragraph 7 – subparagraph 2
Article 22 – paragraph 7 – subparagraph 2
Detention shall be for as short a period as possible, which shall in no case excemaintained four months. It may be maintained onlyat least as long as removal arrangements are in progress and executed with due diligence.