60 Amendments of Tom VANDENDRIESSCHE related to 2018/0329(COD)
Amendment 130 #
Proposal for a directive
Recital 3
Recital 3
Amendment 133 #
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 irregular migration and ensures coherence with and contributes to the integrity of the Common European Asylum System and the legal migration system. These common standards cannot, however, infringe in any way Member States’ sovereign right and obligation, in accordance with Article 15 of the ECHR amongst others, to defend and safeguard their territories and populations against the nefarious consequences of unfettered legal or illegal migration.
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 5
Recital 5
(5) This Directive should establish a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State. These horizontal rules should not impede sovereign Member States from imposing stricter rules on third country citizens as befits each Member State’s particular social and economic situation.
Amendment 141 #
Proposal for a directive
Recital 6
Recital 6
(6) Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and, final, transparent, and swift procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive. Member States should not limit themselves to taking decisions but should also implement them, using all legal means at their disposal, including temporary detention preceding repatriation without delay.
Amendment 148 #
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 and its actual execution should be reinforced in order to reduce the risk of absconding and the likelihood of unauthorised secondary movements. It is necessary to ensure that a return decision is issued immand executedi ately after the same time as 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. There should be only one possibility of appeal, and there should be prima facie procedural reasons for declaring an appeal admissible.
Amendment 154 #
Proposal for a directive
Recital 8
Recital 8
(8) The need for Union and bilateral readmission agreements with third countries to facilitate the return process is underlined. International cooperation with countries of origin at all stages of the return process is a prerequisite to achieving sustainable return. Third countries that refuse to readmit their own nationals should bear the financial consequences of that decision.
Amendment 157 #
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. In the interests of fairness and efficiency, asylum systems should be limited to applications by nationals of (allegedly) unsafe countries.
Amendment 167 #
Proposal for a directive
Recital 11
Recital 11
(11) To ensure clearer anda more effective rules for granting a period for voluntary departure and detaining a third- country national, determining whether there is or there is not a risk of absconding should be based on Union-wide objective criteria. Moreover this Directive should set out specific criteria which establish a greturn policy, the Member States will take sovereign decisions on a case-by-case basis, determining whether there is or there is not a risk of absconding based on objective criteria. Since Member States’ social and economic situations can differ substantially, this Directive shounld for a rebuttable presumption that abe limited to providing examples of criteria to allow the risk of absconding existsto be determined.
Amendment 176 #
Proposal for a directive
Recital 13
Recital 13
(13) Where there are no reasons to believe that the granting of a period for volIn the interests of legal certainty, the equal treatment of all third-countary 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 grantednationals awaiting repatriation and the efficiency of asylum systems, forced return should be preferred over voluntary return. In exceptional individual circumstances, a sovereign Member State may opt for a period for voluntary departure. 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. 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 185 #
Proposal for a directive
Recital 14
Recital 14
Amendment 193 #
Proposal for a directive
Recital 15
Recital 15
Amendment 200 #
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 five 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 207 #
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 procedurbe declared inadmissible.
Amendment 215 #
Proposal for a directive
Recital 18
Recital 18
(18) An appeal against a return decision should have an automatic suspensive effect only in cases where there is a risk of breach of the principle of non-refoulement. An appeal against a return decision is only admissible if the appellant has voluntarily entered secure detention pending the outcome of the appeal.
Amendment 229 #
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 andor 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 22
Recital 22
(22) The situation of third-country nationals who are staying illegally but who cannot yet be removed should be addressed. Their basic conditions of subsistence should be defined according to national legislation. In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmakept in secure detention awaiting repatriation, so that their basic conditions of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directivesubsistence can be met, and the asylum system can be run fairly and efficiently.
Amendment 242 #
Proposal for a directive
Recital 24
Recital 24
(24) The effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five, with a minimum duration of 20 years. In this context, particular account should be taken of the factaggravating circumstances, i.e. that the third-country national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban.
Amendment 262 #
Proposal for a directive
Recital 28
Recital 28
(28) Detention should be imposed, following an individual assessment of each case,the default option, especially 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.
Amendment 292 #
Proposal for a directive
Recital 33
Recital 33
(33) To ensure effective return in the context of the border procedure, a period for voluntary departure should not be granted. However, a period for voluntary departure shouldA period for voluntary departure may in exceptional circumstances be granted to third- country nationals who hold a valid travel document and cooperate with the competent authorities of the Member States at all stages of the return procedures. In such cases, to prevent absconding, third- country nationals should hand over the travel document to the competent authority until their departure.
Amendment 300 #
Proposal for a directive
Recital 34
Recital 34
(34) For a rapid treatment of the case, a maximum time limit is to be granted to appeal against a return decision followingat the latest together with a decision rejecting an application for international protection adopted under the border procedure and which became final.
Amendment 302 #
Proposal for a directive
Recital 35
Recital 35
Amendment 320 #
Proposal for a directive
Recital 39
Recital 39
(39) Cooperation between the sovereign Member States, cooperation between the institutions involved at all levels in the return process and the exchange and promotion of best practices, including by taking into account and regularly updating the Return Handbook to reflect legal and policy developments, should accompany the implementation of this Directive and provide European added value.
Amendment 326 #
Proposal for a directive
Recital 42
Recital 42
Amendment 327 #
Proposal for a directive
Recital 43
Recital 43
(43) In line with the 1989 United Nations Convention on the Rights of the Child, the ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive. However, these rights should not be abused in order to circumvent or weaken the asylum system.
Amendment 369 #
Proposal for a directive
Article 3 – paragraph 1 – point 7
Article 3 – paragraph 1 – point 7
7. ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third- country national who is the subject of return procedures may abscond;
Amendment 374 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. This Directive shall be without prejudice to more favourable provisions of:
Amendment 375 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 376 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable or more stringent to persons to whom it applies provided that such provisions are compatible with this Directive.
Amendment 385 #
Proposal for a directive
Article 5 – paragraph 1 – point c a (new)
Article 5 – paragraph 1 – point c a (new)
(c a) the rights of their own population
Amendment 490 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall issue a return decision and a detention order to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.
Amendment 497 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
Amendment 501 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finisheda return decision shall terminate that procedure.
Amendment 522 #
Proposal for a directive
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Amendment 525 #
Proposal for a directive
Article 9 – paragraph 1 – subparagraph 3
Article 9 – paragraph 1 – subparagraph 3
Amendment 529 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 550 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 9(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 9. Those measures shall include all measures necessary. Those measures shall include all measures necessary for the detention of the person of illegally staying third- country nationals and to confirm the identity of illegally staying third-country nationals who do not hold a valid travel document and to obtain such a document.
Amendment 554 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States may adopt a separate administrative or judicial decision or act ordering the removalshould also order removal in the return decision.
Amendment 556 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.
Amendment 563 #
Proposal for a directive
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
Amendment 565 #
Proposal for a directive
Article 11 – paragraph 2 – point a
Article 11 – paragraph 2 – point a
Amendment 569 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Amendment 577 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
Amendment 595 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed fivebe at least twenty years. It may however exceed fivetwenty years if the third- country national represents a serious threat to public policy, public security or national security.
Amendment 596 #
Proposal for a directive
Article 13 – paragraph 4 – subparagraph 1
Article 13 – paragraph 4 – subparagraph 1
Amendment 598 #
Proposal for a directive
Article 13 – paragraph 4 – subparagraph 2
Article 13 – paragraph 4 – subparagraph 2
Amendment 600 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
5. Where aA Member State is consideringcan not issuinge a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban in accordance with Article 27 of Regulation (EU) 2018/XXX 29 . _________________ 29Regulation (EU) 2018/… of the European Parliament and of the Council of […] on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006 [has yet to be adopted].
Amendment 610 #
Proposal for a directive
Article 14 – paragraph 3 – subparagraph 1
Article 14 – paragraph 3 – subparagraph 1
Member States shall decide for themselves whether to establish programmes for providing logistical, financial and other material or in-kind assistance, in accordance with national legislation, for the purpose of supporting the return of illegally staying third-country nationals who are nationals of third countries listed in Annex I to Council Regulation 539/200130. _________________ 30Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ L 81, 21.3.2001, p. 1).
Amendment 631 #
Proposal for a directive
Article 15 – paragraph 3 – subparagraph 3
Article 15 – paragraph 3 – subparagraph 3
Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concernedmajor world languages.
Amendment 632 #
Proposal for a directive
Article 16 – title
Article 16 – title
Amendment 638 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
The third-country national concerned shall be granted the right to appeal before no more than one level of jurisdiction only against the return decision,with no possibility of resumption of proceedings, where that decision is based on a decision rejecting an application for international protection taken in accordance with Regulation (EU) …/… [Asylum Procedure Regulation] that was subject to an effective judicial review in accordance with Article 53 of that Regulation.
Amendment 642 #
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 aThe possibility of 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 officion appeal decision is not necessary.
Amendment 662 #
Proposal for a directive
Article 16 – paragraph 6
Article 16 – paragraph 6
6. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC. Recognised refugees may be asked to reimburse the cost of legal and linguistic assistance to the Member State.
Amendment 667 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
1a. The principles underpinning 1 a. to d. do not exclude this being achieved in police custody.
Amendment 688 #
Proposal for a directive
Article 18 – paragraph 2 – subparagraph 1
Article 18 – paragraph 2 – subparagraph 1
Detention shall be ordered by administrative or judicial authorities at the same time as the return decision.
Amendment 709 #
Proposal for a directive
Article 19 – paragraph 4
Article 19 – paragraph 4
4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third- country nationals in accordance with this Chapter. Such visits may be subject to authorisation.
Amendment 719 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriatbe repatriated as a matter of priority in order to reduce the period of timedetention.
Amendment 745 #
Proposal for a directive
Article 22 – paragraph 4
Article 22 – paragraph 4
4. A period for voluntary departure shall not be granted. Member States shall however in exceptional circumstances grant an appropriate period for voluntary departure in accordance with Article 9 to third-country nationals holding a valid travel document and fulfilling the obligation to cooperate with the competent authorities of the Member States at all stages of the return procedures established in accordance with paragraph 7. Member States shall require the third-country nationals concerned to hand over the valid travel document to the competent authority until departure.
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 749 #
Proposal for a directive
Article 22 – paragraph 6 – subparagraph 1 – point a
Article 22 – paragraph 6 – subparagraph 1 – point a
(a) sufficiently serious new elements or findings have arisen or have been presented by the third -country national concerned after a decision rejecting an application for international protection taken by virtue of Article 41 of Regulation (EU) …/… [Asylum Procedure Regulation], which significantly modify the specific circumstances of the individual case and which could not in any way have already been brought to the knowledge of the third-country national concerned; or