36 Amendments of Tomas TOBÉ related to 2016/0224(COD)
Amendment 72 #
Proposal for a regulation
Recital 31a
Recital 31a
(31a) In order to increase the efficiency of procedures and to reduce the risk of absconding and the likelihood of unauthorised movements, there should be no procedural gaps between the issuance of a negative decision on an application for international protection and of a return decision. A return decision should immediately be issued to applicants whose applications are rejected. Without prejudice to the right to an effective remedy, the return decision should either be part of the negative decision on an application for international protection or, if it is a separate act, be issued at the same time and together with the negative decision in order to fulfil the time limits provided for in this regulation.’ The competent authorities shall take the necessary measures to ensure that the applicant is personally available to receive the decisions.’
Amendment 85 #
Proposal for a regulation
Recital 39a
Recital 39a
(39a) ‘In the interest of swift and fair procedures for all applicants, whilst also ensuring that the stay of applicants who do not qualify for international protection in the Union is not unduly prolonged, including those who are nationals of third countries exempt from the requirement to be in a possession of a visa pursuant to Regulation (EU) No 2018/1806, Member States should accelerate the examination of applications of applicants who are nationals or, in the case of stateless persons, formerly habitual residents of a third country for which the share of decisions granting international protection is lower than 20% of the total number of decisions for that third country. Where a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data and taking into account the guidance note pursuant to Article 10 of Regulation XX/XX on the European Asylum Agency, or where the applicant belongs to a specific category of persons for whom the low recognition rate cannot be considered as representative of their protection needs due to a specific persecution ground, examination of the application should not be accelerated, unless the applicant is a danger to national security or public order. Cases where a third country may be considered as a safe country of origin or a safe third country for the applicant within the meaning of this Regulation should remain applicable as a separate ground for respectively the accelerated examination procedure or the inadmissible procedure.
Amendment 100 #
Proposal for a regulation
Recital 40a
Recital 40a
(40a) ‘ The purpose of the border procedure for asylum and return should be to quickly assess at the external borders whether applications are unfounded or inadmissible and to swiftly return those with no right to stay, while ensuring that those with well-founded claims are channelled into the regular procedure and provided quick access to international protection. Member States should therefore be able to requiroblige applicants for international protection to stay, inter alia, at the external border or in a transit zone in order to assess the admissibility of applications. In well-defined circumstances, Member States should be able to provide for the examination of the merits of an application and, in the event of rejection of the application, for the return of the third- country nationals and stateless persons concerned at the external borders.
Amendment 104 #
Proposal for a regulation
Recital 40b
Recital 40b
(40b) Member State should assess applications in a border procedure where the applicant is a danger to national security or public order, where the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity or nationality that could have had a negativen impact on the decision and where it is likely that the application is unfounded because the applicant is of a nationality for whom decisions granting international protection is lower than 20% of the total number of decisions for that third country. In other cases, such as when the applicant is from a safe country of origin or a safe third country, the use of the border procedure should be optional for the Member States. Member States should ensure that applications in a border procedure are examined in facilities designated at their discretion that allow for a necessary restriction of movement to prevent absconding.
Amendment 117 #
Proposal for a regulation
Recital 40c
Recital 40c
(40c) When applying the border procedure for the examination of an application for international protection, Member States should ensure that the necessary arrangements are made to accommodate the applicants at or close to the external border or transit zones, in accordance with Directive XXX/XXX/EU [Reception Conditions Directive]. Member States may process the applications at a different location at the external border than that where the asylum application is made by transferring applicants to a specific location at or in the proximity of the external border of that Member States where appropriate facilities exist. Member States should retain discretion in deciding at which specific locations at the external borders such facilities should be set up, provided that appropriate capacities are guaranteed to prevent unauthorised movements. However, Member States should seek to limit the need for transferring applicants for this purpose, and therefore aim at setting up such facilities with sufficient capacity at border crossing points, or sections of the external border, where the majority of the number of applications for international protection are made, also taking into account the length of the external border and the number of border crossing points or transit zones. They should notify the Commission of the specific locations at the external border, transit zones or proximity of the external border where the border procedures will be carried out. In cases where the border procedure is applied and the capacity of the locations at or in proximity of the external border as notified by a Member State is temporarily exceeded, Member States may process those applications at another location within its territory, for the shortest time possible.
Amendment 122 #
Proposal for a regulation
Recital 40d
Recital 40d
Amendment 135 #
Proposal for a regulation
Recital 40e
Recital 40e
(40e) The duration of the border procedure for examination of applications for international protection should be as short as possible while at the same time guaranteeing a complete and fair examination of the claims. It should in any event not exceed 12 weeks. This deadline should be understood as a stand-alone deadline for the asylum border procedure, encompassing both the decision on the examination of the application as well as the decision of the first level of appeal, if applicable. Within this period, Member States are entitled to set the deadline in national law both for the administrative and for the appeal stage, but should set them in a way so as to ensure that the examination procedure is concluded and that subsequently, if relevant, the decision on the first level of appeal is issued within this maximum 12 week. After that period, if the Member State nevertheless failed to take the relevant decisions, the applicant should in principle be authorised to enter the territory of the Member State. Entry into the territory should however not be authorised where the applicant has no right to remain, where he or she has not requested to be allowed to remain for the purpose of an appeal procedure, or where a court or tribunal has decided that he or she should not be allowed to remain pending the outcome of an appeal procedure. In such cases, to ensure continuity between the asylum procedure and the return procedure, the return procedure should also be carried out in the context of a border procedure for a period not exceeding 12 weeks. This period should be counted starting from twhe moment in which the applicant, third-country national or stateless person no longer has a right to remain or is no longer allowed to remainn the return decision have gained legal force.
Amendment 141 #
Proposal for a regulation
Recital 40f
Recital 40f
(40f) While the border procedure for the examination of an application for international protection can be applied without recourse to detention, Member States should nevertheless be able to apply the grounds for detention during the border procedure in accordance with the provisions of the [Reception Conditions] Directive (EU) XXX/XXX in order to decide on the right of the applicant to enter the territory. If detention is used during such procedure, the provisions on detention of the [Reception Conditions] Directive (EU) XXX/XXX should apply, including the guarantees for detained applicants and the fact that an individual assessment of each case is necessary, judicial control and conditions of detention. A Member State may, in accordance with national law, impose additional obligations on the applicant in order to prevent unauthorised movements.
Amendment 157 #
Proposal for a regulation
Recital 40i
Recital 40i
(40i) Where an applicant, third-country national or stateless person who was detained during the border procedure for the examination of their application for international protection no longer has a right to remain and has not been allowed to remain, Member States should be able to continue the detention for the purpose of preventing entry into the territory and carrying out the return procedure, respecting the guarantees and conditions for detention laid down in Directive XXX/XXX/EU [Return Directive]. An applicant, third-country national or stateless person who was not detained during the border procedure for the examination of an application for international protection, and who no longer has a right to remain and has not been allowed to remain, could also be detained if there is a risk of absconding, if he or she avoids or hampers return, or if he or she poses a risk to public policy, public security or national security. Detention should be for as short a period as possible and should not exceed the maximum duration of the border procedure for carrying out returntime set out in Article 15 of Directive 2008/115 [Return Directive]. When the illegally staying third-country national does not return or is not removed within that period and the border procedure for carrying out return ceases to apply, the provisions of the [recast Return Directive] should apply. The maximum period of detention set by Article 15 of that Directive should include the period of detention applied during the border procedure for carrying our return.
Amendment 168 #
Proposal for a regulation
Recital 44a
Recital 44a
(44a) ‘An applicant who lodges a subsequent application at the last minute merely in order to delay or frustrate his or her removal should not be authorised to remain pending the finalisation of the decision declaring the application inadmissible in cases where it is immediately clear to the determining authority that no new elements have been presented and there is no risk of refoulement and provided that the application is made within one year of the decision by the determining authority on the first application. The determining authority shall issue a decision under national law confirming that these criteria are fulfilled in order for the applicant not to be authorised to remain. ’
Amendment 179 #
Proposal for a regulation
Recital 66
Recital 66
(66) Applicants should, in principle, have the right to remain on the territory of a Member State until the time-limit for lodging an appeal before a court or tribunal of first instance expires, and, where such a right is exercised within the set time-limit, pending the outcome of the appeal. It is only in the limited cases set out in this Regulation, where applications are likely to be inadmissible, unfounded or manifestly unfounded, that the applicant should not have an automatic right to remain for the purpose of the appeal.
Amendment 184 #
Proposal for a regulation
Recital 66a
Recital 66a
(66a) ‘In cases where the applicant has no automatic right to remain for the purpose of the appeal, a court or tribunal should still be able to allow the applicant to remain on the territory of the Member State pending the outcome of the appeal, upon the applicant’s request or acting of its own motion. In such cases, applicants should have a right to remain until the time-limit for requesting a court or tribunal to be allowed to remain has expired and, where the applicant has presented such a request within the set time-limit, pending the decision of the competent court or tribunal. In order to discourage abusive or last minute subsequent applications, Member States should be able to provide in national law that applicants should have no right to remain during that period in the case of rejected subsequent applications, with a view to preventing further unfounded subsequent applications. In the context of the procedure for determining whether or not the applicant should be allowed to remain pending the appeal, the applicant’s rights of defence should be adequately guaranteed by providing him or her with the necessary interpretation and legal assistance. Furthermore, the competent court or tribunal should be able to examine the decision refusing to grant international protection in terms of facts and points of law.
Amendment 190 #
Proposal for a regulation
Recital 66c
Recital 66c
(66c) To ensure the consistency of the legal review carried out by a court or tribunal on a decision rejecting an application for international protection and the accompanying return decision, and with a view to accelerating the examination of the case and reducing the burden on the competent judicial authorities, such decisions should be subject to common proceedings before the same court or tribunal in order to fulfil the time-limits provided for in this regulation.
Amendment 194 #
Proposal for a regulation
Recital 66d a (new)
Recital 66d a (new)
(66d a)The Commission should regularly monitor and evaluate whether this Regulation is being properly applied and implemented. To this end, the Commission should make use of its power to initiate a monitoring exercise by the European Asylum Agency in accordance with Article 14 (2) of [EUAA Regulation].
Amendment 239 #
Proposal for a regulation
Article 41 – paragraph 1 – point b
Article 41 – paragraph 1 – point b
(b) following apprehension in connection with ana Member States territory after unauthorised crossing of the external border;
Amendment 267 #
Proposal for a regulation
Article 41 – paragraph 4
Article 41 – paragraph 4
Amendment 286 #
Proposal for a regulation
Article 41 – paragraph 5
Article 41 – paragraph 5
5. The border procedure may only be applied to unaccompanied minors anin the cases referred to minors below the age of 12 and their family members in the cases referred to in Article 40(5) (b) Article 40(5) (b). Where the outcome of the age assessment referred to in Article 24 or the medical examination referred to Article 23 is not sufficiently conclusive, this exception shall not apply.
Amendment 293 #
Proposal for a regulation
Article 41 – paragraph 5 a (new)
Article 41 – paragraph 5 a (new)
5a. The border procedure may only be applied to minors below the age of 12 and their family members in the cases referred to in Article 40(5).
Amendment 301 #
Proposal for a regulation
Article 41 – paragraph 6
Article 41 – paragraph 6
6. Applicants subject to the border procedure shall not be authorised to enter the territory of the Member State, without prejudice to paragraphs 9 and 11. When the border procedure ends, the decision to authorise entry shall be explicitly granted and recorded by the Member State carrying out the border procedure.
Amendment 308 #
Proposal for a regulation
Article 41 – paragraph 7
Article 41 – paragraph 7
7. When applying the border procedure, Member States may carry out the procedure for determining the Member State responsible for examining the application as laid down in Regulation (EU) No XXX/XXX [Regulation on Asylum and Migration Management], except in the cases referred to in paragraph 3, without prejudice to the deadlines established in paragraph 11
Amendment 367 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – point c a (new)
Article 41 – paragraph 12 – subparagraph 1 – point c a (new)
(ca) the applicant is a danger to national security or public order.
Amendment 406 #
Proposal for a regulation
Article 41 a – paragraph 2
Article 41 a – paragraph 2
2. Persons referred to in paragraph 1 shall be kept for a period not exceeding 12 weeks in locations at or in proximity to the external border or transit zones; where a Member State cannot accommodate them in those locations, it can resort to the use of other locations within its territory. The 12- week perio, provided sthall start from when the applicant, third-country national or stateless person no longer has a right to remain and is not allowed to remaint the efficiency of the procedure and restrictions to the freedom of movement can be preserved. The 12- week period shall start from when the return decision have gained legal force.
Amendment 414 #
Proposal for a regulation
Article 41 a – paragraph 4
Article 41 a – paragraph 4
4. Without prejudice to the possibility to return voluntarily at any moment, persons referred to in paragraph 1 may be granted a period for voluntary departure not exceeding 15 days. In the framework of this Article, the European Border and Coast Guard Agency and the European Union Agency for Asylum shall, within its mandate, support national authorities with return operations.
Amendment 422 #
Proposal for a regulation
Article 41 a – paragraph 5
Article 41 a – paragraph 5
5. Persons referred to in paragraph 1 who have been detained during the procedure referred to in Article 41 and who no longer have a right to remain and are not allowed to remain may continue to be detained for the purpose of preventing entry into the territory of the Member State, preparing the return or carrying out the removal process. A Member State may, in accordance with national law, impose additional obligations on the applicant in order to prevent unauthorised movements.
Amendment 432 #
Proposal for a regulation
Article 41 a – paragraph 7
Article 41 a – paragraph 7
7. Detention shall be maintained for as short a period as possible, as long as removal arrangements are in progress and executed with due diligence. The period of detention shall not exceed the period referred to in paragraph 2 and shall be included in the maximum periods of detention set in Article 15 (5) and (6) of Directive XXX/XXX/EU [Return Directive].
Amendment 437 #
8. Member States that, following the rejection of an application in the context of the procedure referred to in Article 41, issue a refusal of entry in accordance with Article 14 of Regulation (EU) 2016/399, and that have decidedmay decide not to apply Directive XXX/XXX/EU [Return Directive] in such cases pursuant to Article 2(2), point (a), of that Directive,. Member States shall ensure that the treatment and level of protection of the third-country nationals and stateless persons subject to a refusal of entry are in accordance with Article 4(4) of Directive XXX/XXX/EU [Return Directive] and are equivalent to the ones set out in paragraphs 2, 4 and 7 of this Article.’
Amendment 443 #
Proposal for a regulation
Article 43 – subparagraph 2 – point c
Article 43 – subparagraph 2 – point c
(c) a first subsequent application has been lodged within one year of the decision of the determining authority on the first application merely in order to delay or frustrate the enforcement of a return decision which would result in the applicant’s imminent removal from the Member State, pending the finalisation of the decision declaring that application inadmissible in cases where it is immediately clear to the determining authority that no new elements have been presented in accordance with Article 42(4)’
Amendment 457 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 2
Article 53 – paragraph 1 – subparagraph 2
Amendment 469 #
Proposal for a regulation
Article 53 – paragraph 3 a (new)
Article 53 – paragraph 3 a (new)
3a. The examination before a court or tribunal shall be through written submissions, unless the court or tribunal consider a hearing necessary for the examination referred to in subparagraph 3 of this Article.
Amendment 472 #
Proposal for a regulation
Article 53 – paragraph 4
Article 53 – paragraph 4
4. AWhere such a hearing takes place, applicants shall be provided with interpretation for the purpose of a hearing before the competent court or tribunal where such a hearing takes place and whereif appropriate communication cannot otherwise be ensured.
Amendment 480 #
Proposal for a regulation
Article 53 – paragraph 7 – point a
Article 53 – paragraph 7 – point a
(a) at least maximum of one week in the case of a decision rejecting an application as inadmissible, as implicitly withdrawn or as unfounded if at the time of the decision any of the circumstances listed in Article 40(1) or (5) apply;
Amendment 487 #
Proposal for a regulation
Article 53 – paragraph 7 – point b
Article 53 – paragraph 7 – point b
(b) between a minimum of two weeks and a maximum of two monthfour weeks in all other cases.
Amendment 496 #
Proposal for a regulation
Article 53 – paragraph 9
Article 53 – paragraph 9
9. Member States shall provide for only one level of appeal in relation to a decision taken in the context of the border procedure as the principle of effective judicial protection requires.
Amendment 511 #
Proposal for a regulation
Article 54 – paragraph 3 – point b
Article 54 – paragraph 3 – point b
(b) a decision which rejects an application as inadmissible pursuant to Article 36(1)(a) [first country of asylum] or (c) [subsequent applications without new elements]; including cases in which the application has not been examined on the merits because another Member State has granted international protection to the applicant;
Amendment 515 #
Proposal for a regulation
Article 54 – paragraph 3 – point d
Article 54 – paragraph 3 – point d
(d) a decision which rejects a subsequent application as inadmissible, unfounded or manifestly unfounded;
Amendment 526 #
Proposal for a regulation
Article 54 – paragraph 5 – point a
Article 54 – paragraph 5 – point a
(a) the applicant shall have a time-limit of at least 5 daysbetween a minimum of two days and a maximum of one week from the date when the decision is notified to him or her to request to be allowed to remain on the territory pending the outcome of the remedy;