79 Amendments of Giuliano PISAPIA related to 2016/0224(COD)
Amendment 70 #
Proposal for a regulation
Recital 31
Recital 31
(31) ‘In order to guarantee the rights of the applicant, a decision concerning his or her application should be given in writing. Where the decision does not grant international protection, the applicant should be given reasons in fact and in law, information on the consequences of the decision and the modalities for challenging it. Without prejudice to the applicant’s right to remain and to the principle of non-refoulement, such a decision may include, or may be issued together with, a return decision issued in accordance with Article 6 of Directive 2008/115/EC of the European Parliament and of the Council.
Amendment 74 #
Proposal for a regulation
Recital 31a
Recital 31a
(31a) In orWhere a Member State considers tohat it would increase the efficiency of procedures and to reduce the risk of absconding and the likelihood of unauthorised movements, if there should bare no procedural gasteps between the issuance of a negative decision on an application for international protection and of a return decision. A, it may issue 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 intThis possibility should in no way restrict Member States’ discretion as regards the use of Article 6(5) of Regulation (EU) 2016/399 1a or their discretion to issue residence permits or other authorisations under national protection or, if it is a separate act, be issued at the same time and together with the negative decision.’law granting a right to stay on the territory. _________________ 1a Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).
Amendment 89 #
Proposal for a regulation
Recital 40
Recital 40
(40) ‘Many applications for international protection are made at the external border or in a transit zone of a Member State, often by persons apprehended in connection with unauthorisedirregular crossings of the external border or disembarked following a search and rescue operation. In order to conduct identification, security and health screening at the external border and direct the third-country nationals and stateless persons concerned to the relevant procedures, a screening is necessary. There should be seamless and efficient links between all stages of the relevant procedures for all irregular arrivals. After the screening, tThird-country nationals and stateless persons should be channelled to the appropriate asylum or return procedure, or refused entry. A pre- entry phase consisting of screening and border procedures for asylum and return should therefore be established.’, or granted entry in accordance with Article 6(5) of the Schengen Borders Code.
Amendment 99 #
Proposal for a regulation
Recital 40a
Recital 40a
(40a) ‘ The purpose of the border procedure for asylum and return should be to quickly assess applications, at the external borders whether applications are unfounded or inadmissible and to, to determine whether they are well founded or unfounded. If unfounded, the procedure should allow for a swiftly return of those with no right to stay and who have been issued a return decision, 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 require applicants for international protection to stay 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 tha decision on the possible return of the third-country nationals and stateless persons concerned at the externconcerned in a border procedure. However a border procedures should not be applied to unaccompanied minors, families with children, and other vulnerable applicants including those with special procedural border reception needs.
Amendment 105 #
Proposal for a regulation
Recital 40b
Recital 40b
(40b) Member State should be able to 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 negative impact on the decision and where it is likely that the application is unfounded because the applicant is of a nationality for whom the number of decisions granting international protection in that Member State is lower than 210% of the total number of decisions for that third country. In other cases, such as same way, 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.
Amendment 116 #
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 apcomplicants at or close to the external border or transit zones, in accordance withce with the provisions of Directive XXX/XXX/EU [Reception Conditions Directive] as regards accommodation for applicants. 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 ofin 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. 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 atThey should notify the Commission of the specific locations at which the border cprossing points, or sections of the external border, where the majority of the number of applications for international proteccedures will be carried out. In cases where the border procedure is applied and the capacity of the locations 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 outs 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. 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 125 #
Proposal for a regulation
Recital 40d
Recital 40d
(40d) In case where the use of the border procedure is an obligation, Member States should by way of exception not be required to apply itMember States should not apply the border procedure for the examination of applications for international protection from nationals of a third country that does not cooperate sufficiently on readmission, since a swift return of the persons concerned, following rejection of their applications, would be unlikely in that case. The determination of whether a third country is cooperating sufficiently on readmission should be based on the procedures set out in Article 25a of Regulation (EC) No 810/2009.
Amendment 132 #
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, and without prejudice to the independence of the judiciary, 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 thatable the examination procedure isto be concluded and that subsequently, if relevant, thea decision on the first level of appeal isto be issued within this maximum 12 weeks. 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 the moment in which the applicant, third- country national or stateless person no longer has a right to remain or is no longer allowed to remainWhere a final decision is not taken within 12 weeks, the border procedure shall end and the applicant shall be allowed to enter the territory of the Member State.
Amendment 140 #
Proposal for a regulation
Recital 40f
Recital 40f
(40f) While the border procedure forAdministrative detention during the examination of an application for international protection can be applied without recourse to detention,should remain a measure of last resort. Any detention decision must be based on an individual assessment and determined to be necessary, reasonable and proportionate to a legitimate purpose. 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.
Amendment 144 #
Proposal for a regulation
Recital 40 g
Recital 40 g
(40g) When an application is rejected in the context of the border procedure, the applicant, third-country national or stateless person concerned should be immediately subject to a return decision or, where the conditions ofMember State in question may issue the applicant a return decision provided that it respects Article 145 of Regulation (EU) No 2016/399 of the European Parliament and of the Council10 are met, to a refusal of entry. To guarantee the equal treatment of all third-country nationals whose application has been rejected in the context of the border procedure, where a Member State has decided not to apply the provisions of Directive XXX/XXX/EU [Return Directive] by virtue of Article 2(2), point (a), of that Directive and does not issue a return decision to the third-country national concernedthe Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (‘the Returns Directive’)2a and due consideration has been given in the individual case to the application of Article 8, paragraphs 2 to 5 of that Directive. The Member State may also, twhe treatment and level of protecre the conditions of the applicant, third- country national or stateless person concerned should be in accordance with Article 4(4) of Directive XXX/XXX/EU [Return Directive] and be equivalent to those applicable to persons subject to a return decision. _________________ 10Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 077 23.3.2016, p. 1Article 14 of Regulation (EU) No 2016/399 of the European Parliament and of the Council are met, issue a refusal of entry without prejudice to Article 6(5) of that Regulation. _________________ 2aDirective (EU) xxx/xxx of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast).
Amendment 148 #
Proposal for a regulation
Recital 40 h
Recital 40 h
(40h) When applying the border procedure for carrying out return, certain provisions of the [recastthe Return Directive] should apply as these regulateto all elements of the return procedure that are not determined by this Regulation, notably those on definitions, more favourable provisions, non-refoulement, best interests of the child, family life and state of health, risk of absconding, obligation to cooperate, period for voluntary departure, return decision, removal, postponement of removal, return and removal of unaccompanied minors, entry bans, safeguards pending return, detention, conditions of detention, detention of minors and families and emergency situations. To reduce the risk of unauthorised entry and movement of illegally staying third-country nationals subject to the border procedure for carrying out return, a period for voluntary departure not exceeding 15 days may be granted to illegally staying third-country nationals, without prejudice for the possibility to voluntarily comply with the obligation to return at any moment.
Amendment 156 #
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 theihis/her 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]. AWhere 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 whoere that application was unsuccessful, and that applicant no longer has a right to remain and has not been allowed to remain, could also bthe dRetained 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 return. 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 duringurn Directive should apply. Member States may detain an applicant where other sufficient but less coercive measures cannot be applied effectively, for as short a period as possible and not exceeding the maximum duration of the border procedure for carrying ourt return.
Amendment 169 #
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 authoritya court or tribunal 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. ’may request a court or tribunal to revoke an applicant’s right to remain in such cases.
Amendment 173 #
Proposal for a regulation
Recital 65
Recital 65
(65) ‘For an applicant to be able to exercise his or her right to an effective remedy against a decision rejecting an application for international protection, and where a return decision has also been issued to the applicant, all effects of theat return decision should be automatically suspended for as long as the applicant has the right to remain or has been allowed to remain on the territory of a Member State. To improve the effectiveness of procedures at the external border, while ensuring the respect of the right to an effective remedy, appeals against decisions taken in the context of the border procedure should take place only before a single level of jurisdiction of a court or tribunal.
Amendment 178 #
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 unfounded, that the applicant should not have an automatic right to remain for the purpose of the appeal.
Amendment 182 #
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 pendinga court or tribunal is requested to revoke the applicant’s right to remain for the purpose of 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 185 #
Proposal for a regulation
Recital 66b
Recital 66b
(66b) In order to ensure effective returns, applicants should not have athe efficacy of the asylum and return procedures, a court or tribunal should be able to revoke an applicant’s right to remain on the Member State’s territory at the stage of a second or further level of appeal before a court or tribunal against a negative decision on the application for international protection, without prejudice to the possibility for a court or tribunal to allow the applicant to remain. Furthermore, Member States should not grant applicants the possibility to lodge a further appeal against a first appeal decision in respect of a decision taken in a border procedure.
Amendment 191 #
(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 accompanyingany related return decision, and with a view to accelerating the examination of the case and reducing the burden on the competent judicial authorities, it should be possible that such decisions should bare subject to common proceedings before the same court or tribunal.
Amendment 193 #
Proposal for a regulation
Recital 66d a (new)
Recital 66d a (new)
(66d a)In order to ensure compliance with EU and international law, including the Charter of Fundamental Rights, upon irregular arrival at the EU’s external borders, during border surveillance, screening, the asylum procedure or the return procedure, each Member State should establish a monitoring mechanism and put in place adequate safeguards for the independence of that mechanism, in particular by involving national human rights institutions, national ombudspersons, international organisations or relevant non- governmental organisations in the management and operation of the mechanism. The monitoring mechanism should cover in particular the respect for fundamental rights in relation to border surveillance, the screening, asylum and return procedures, as well as the respect for the applicable rules regarding detention and compliance with the principle of non-refoulement as referred to in Article 3(b) of Regulation (EU) 2016/399. The Fundamental Rights Agency (FRA) should establish general guidance as to the establishment and the independent functioning of such monitoring mechanism. Member States should furthermore be allowed to request the support of the FRA for developing their national monitoring mechanism. Member States should also be allowed to seek advice from the FRA with regard to establishing the methodology for this monitoring mechanism and with regard to appropriate training measures. The independent monitoring mechanism should be in addition and without prejudice to the monitoring of fundamental rights provided by the European Border and Coast Guard Agency’s fundamental rights monitors provided for in Regulation (EU) 2019/1896, the monitoring mechanism for the purpose of monitoring the operational and technical application of the Common European Asylum System (CEAS) as set out in Article 14 of Regulation (EU) xxxx/xxxx [EU Asylum Agency Regulation] and without prejudice to monitoring of fundamental rights carried out by existing national or international monitoring bodies. The Member States should investigate allegations of the breach of fundamental rights during border surveillance, the screening, asylum and return procedures, including by ensuring that complaints are dealt with promptly, expeditiously and capable of leading to the identification and sanction of those responsible in an appropriate manner.
Amendment 201 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
Amendment 205 #
Proposal for a regulation
Article 27 – paragraph 5
Article 27 – paragraph 5
Amendment 212 #
Proposal for a regulation
Article 35 a
Article 35 a
Where an application is rejected as inadmissible, unfounded or manifestly unfounded with regard to both refugee status and subsidiary protection status, or as implicitly or explicitly withdrawn, Member States shallmay issue a return decision that respects Directive XXX/XXX/EU [Return Directive]. The return decision shall be issued as part of the decision rejecting the application for international protection or, inAs it is a separate decision, the return decision shall be issued as a separate act. Where tThe return decision is issued as a separate act, it shallmay be issued at the same time and together with the decision rejecting the application for international protection.’
Amendment 217 #
Proposal for a regulation
Article 40 – point a – paragraph 1 – point i
Article 40 – point a – paragraph 1 – point i
(i) ‘ the applicant is of a nationality or, in the case of stateless persons, a former habitual resident of a third country for which the proportion of decisions by the relevant national determining authority granting international protection is, according to the latest available yearly Union-wide average Eurostat data, 20% or lower,Eurostat data, 10% or lower, unless the applicant is an unaccompanied minor, a minor, an accompanying family member of a minor, or a vulnerable applicant, including those with special procedural or reception needs, or unless a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or the applicant belongs to a category of persons for whom the proportion of 210% or lower cannot be considered as representative for their protection needs;’
Amendment 221 #
Proposal for a regulation
Article 40 – point b – paragraph 5 – point c
Article 40 – point b – paragraph 5 – point c
Amendment 229 #
Proposal for a regulation
Article 41 – paragraph 1 – introductory part
Article 41 – paragraph 1 – introductory part
1. Following the screening procedure carried out in accordance with Regulation (EU) No XXX/XXX [Screening Regulation], and provided that the applicant has not yet been authorised to enter Member States’ territory, a Member A Member State may examine an application in a border procedure where that application has been made by a third- country national or stateless person who does not fulfil the conditions for entry in the territory of a Member State as set out in Article 6 of Regulation (EU) 2016/399. The border procedure may take place:
Amendment 240 #
Proposal for a regulation
Article 41 – paragraph 1 – point b
Article 41 – paragraph 1 – point b
(b) following apprehension in direct connection with an unauthorised crossing of the external borderirregular border crossing;
Amendment 253 #
Proposal for a regulation
Article 41 – paragraph 2 – point a
Article 41 – paragraph 2 – point a
Amendment 260 #
Proposal for a regulation
Article 41 – paragraph 3
Article 41 – paragraph 3
Amendment 272 #
Proposal for a regulation
Article 41 – paragraph 4 – first paragraph
Article 41 – paragraph 4 – first paragraph
4. A Member State may decideshall not to apply paragraph 3a border procedure to nationals or stateless persons who are habitual residents of third countries for which that Member State has submitted a notification to the Commission in accordance with Article 25a(3) of Regulation (EC) No 810/2009.
Amendment 276 #
Proposal for a regulation
Article 41 – paragraph 4 – second subparagraph
Article 41 – paragraph 4 – second subparagraph
Where, following the examination carried out in accordance with Article 25a(4) of Regulation (EC) No 810/2009, the Commission considers that the third country is cooperating sufficiently, the Member State shallmay again apply the provisions of paragraph 3.
Amendment 278 #
Proposal for a regulation
Article 41 – paragraph 4 – third subparagraph
Article 41 – paragraph 4 – third subparagraph
Amendment 290 #
Proposal for a regulation
Article 41 – paragraph 5
Article 41 – paragraph 5
5. The border procedure may onlyshall not be applied to unaccompanied minors and to minors below the age of 12 and their family members in the cases referred to in Article 40(5) (b)with their family members.
Amendment 325 #
Proposal for a regulation
Article 41 – paragraph 9 – point b
Article 41 – paragraph 9 – point b
(b) the necessary support cannot be provided to applicants with special procedural needs in the locations referred to in paragraph 14;re are vulnerable applicants with specific reception needs or in need of special procedural guarantees
Amendment 334 #
Proposal for a regulation
Article 41 – paragraph 9 – subparagraph 2
Article 41 – paragraph 9 – subparagraph 2
In such cases, the competent authority shall authorise the applicant to enter the territory of the Member State, if he or she has not already been authorised to do so.
Amendment 336 #
Proposal for a regulation
Article 41 – paragraph 10
Article 41 – paragraph 10
Amendment 343 #
Proposal for a regulation
Article 41 – paragraph 11 – subparagraph 1
Article 41 – paragraph 11 – subparagraph 1
11. The border procedure shall be as short as possible while at the same time enabling a complete and fair examination of the claims. It shall encompass the decision referred to in paragraph 2 and 3 and anymay include a decision on an appeal if applicable and shall be completed within 12 weeks from when the application is registered. FIf, following that period, the first instance decision and the decision on appeal, if applicable, have not been taken, the applicant shall be authorised to enter the Member State’s territory except when Article 41a(1) is applicableif he or she has not already been to do so.
Amendment 348 #
Proposal for a regulation
Article 41 – paragraph 11 – subparagraph 2
Article 41 – paragraph 11 – subparagraph 2
Amendment 362 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1– point b
Article 41 – paragraph 12 – subparagraph 1– point b
(b) a court or tribunal has revoked the applicant has no’s right to remain in accordance with Article 54 and has not requested to be allowed to remain for the purposes of an appeal procedure within the applicable time-limit;
Amendment 364 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – point c
Article 41 – paragraph 12 – subparagraph 1 – point c
Amendment 370 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 2
Article 41 – paragraph 12 – subparagraph 2
In such cases, where the applicant has been subject to a return decision issued in accordance with the Directive XXX/XXX/EU [Return Directive] or a refusal of entry in accordance with Article 14 of Regulation (EU) 2016/399, Article 41a shallmay be applyied.
Amendment 376 #
Proposal for a regulation
Article 41 – paragraph 13
Article 41 – paragraph 13
13. During the examination of applications subject to a border procedure, the applicants shall be keptmay be accommodated at or in proximity to the external border or transit zones provided that the conditions of reception comply with Directive (EU) XXX/XXX. Each Member State shall notify to the Commission, [two months after the date of the application of this Regulation] at the latest, the locations where the border procedure will be carried out, at the external borders, in the proximity to the external border or transit zones, including when applying paragraph 3 and ensure that the capacity of those locations is sufficient to process the applications covered by that paragraph. Any changes in the identification of the locations at which the border procedure is applied, shall be notified to the Commission two months in advance of the changes taking effect.
Amendment 389 #
Proposal for a regulation
Article 41 – paragraph 14
Article 41 – paragraph 14
14. In situations where the capacity of the locations notified by Member States pursuant to paragraph 143 is temporarily insufficient to process the applicants covered by paragraph 3border procedures, Member States may designate other locations within the territory of the Member State and upon notification to the Commission accommodate applicants there, on a temporary basis and for the shortest time necessary.
Amendment 404 #
Proposal for a regulation
Article 41 a – paragraph 2
Article 41 a – paragraph 2
2. Persons referred to in paragraph 1 shall be keptaccommodated 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 period shall start from when the applicant, third-country national or stateless person no longer has a right to remain and no longer has a right to remain or has had his or her right to remain revoked by a court or tribunal. Unaccompanied minors, minors with their families, and other vulnerable groups including persons with specific reception needs or isn not allowed to remaieed of special procedural guarantees shall be exempted from the border procedure for carrying out return.
Amendment 410 #
Proposal for a regulation
Article 41 a – paragraph 3
Article 41 a – paragraph 3
3. For the purposes of this Article, Article 3, Article 4(1), Articles 5 to 7, Article 8(1) to (5), Article 9(2) to (4), Articles 10 to 13, Article 15, Article 17(1), Article 18(2) to (4) and Articles 19 to 21 of Directive XXX/XXX/EU [recast Return Directive] shall applyWhen applying the border procedure for carrying out return, the Return Directive applies to all elements of the return procedure that are not regulated in this Article.
Amendment 418 #
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 15of 30 days.
Amendment 423 #
Proposal for a regulation
Article 41 a – paragraph 5
Article 41 a – paragraph 5
5. PA persons referred to in paragraph 1 who haves been detained during the procedure referred to in Article 41 and who no longer haves a right to remain and are not allowed to remainor who has had her/ his right to remain revoked by a court or tribunal 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.
Amendment 426 #
Proposal for a regulation
Article 41 a – paragraph 6
Article 41 a – paragraph 6
6. PA persons referred to in paragraph 1 who no longer haves a right to remain and are not allowed to remainor who has had her/his right to remain revoked by a court or tribunal, and who wereas not detained during the procedure referred to in Article 41, may be detained if there is a risk of absconding within the meaning of Directive XXX/XXX/EU [Return Directive], if they/she avoids or hampers the preparation of return or the removal process or they pose a risk to public policy, public security or national security. Detention should remain a measure of last resort and may be used if no other sufficient but less coercive measures can be applied effectively. Any detention decision shall be taken on the basis of an individual assessment, and shall be determined to be necessary, reasonable and proportionate to a legitimate purpose.
Amendment 433 #
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, and only as long as removal arrangements are in progresa reasonable prospect of removal exists 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 435 #
Proposal for a regulation
Article 41 a – paragraph 8
Article 41 a – paragraph 8
Amendment 442 #
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 merand a court or tribunal has determined that it has been lodged solely 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 447 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – point a a (new)
Article 53 – paragraph 1 – subparagraph 1 – point a a (new)
(aa) a decision to channel the applicant into an accelerated procedure in accordance with Article 40;
Amendment 448 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – point a b (new)
Article 53 – paragraph 1 – subparagraph 1 – point a b (new)
(ab) a decision to channel the applicant into a border procedure in accordance with Article 41;
Amendment 449 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – point a c (new)
Article 53 – paragraph 1 – subparagraph 1 – point a c (new)
(ac) a decision to apply detention during a border procedure;
Amendment 450 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – point b
Article 53 – paragraph 1 – subparagraph 1 – point b
(b) a decision rejecting an application as unfounded or manifestly unfounded in relation to both refugee and subsidiary protection status;
Amendment 460 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 2
Article 53 – paragraph 1 – subparagraph 2
Return decisions shallmay be appealed before the same court or tribunal and within the same judicial proceedings and the same time-limits as decisions referred to in points (a), (b), (c) and (d).
Amendment 462 #
Proposal for a regulation
Article 53 – paragraph 2
Article 53 – paragraph 2
2. Persons recognised as eligible for subsidiary protection shall have the right to an effective remedy against a decision considering their application unfounded in relation to refugee status. Where subsidiary protection status granted by a Member State offers the same rights and benefits as refugee status under Union and national law, the appeal against that decision in that Member State may be considered as inadmissible where provided for in national law.
Amendment 467 #
Proposal for a regulation
Article 53 – paragraph 3
Article 53 – paragraph 3
3. An effective remedy within the meaning of paragraph 1 shall provide for a full and ex nunc examination of both facts and points of law, at least an oral hearing before a court or tribunal of first instance, including, where applicable, an examination of the international protection needs pursuant to Regulation (EU) No XXX/XXX [Qualification Regulation].
Amendment 475 #
Proposal for a regulation
Article 53 – paragraph 6
Article 53 – paragraph 6
Amendment 478 #
Proposal for a regulation
Article 53 – paragraph 7 – introductory part
Article 53 – paragraph 7 – introductory part
7. Member States shall lay down the following time-limits in their national lawin their national law time-limits of at least 15 working days from receipt of the notification of a decision rejecting an application, for applicants to lodge appeals against the decisions referred to in paragraph 1:.
Amendment 479 #
Proposal for a regulation
Article 53 – paragraph 7 – point a
Article 53 – paragraph 7 – point a
Amendment 484 #
Proposal for a regulation
Article 53 – paragraph 7 – point b
Article 53 – paragraph 7 – point b
Amendment 490 #
Proposal for a regulation
Article 53 – paragraph 7 – point b a (new)
Article 53 – paragraph 7 – point b a (new)
(ba) Member States may extend the time limits laid down in this paragraph if the specific circumstances of the application make it necessary.
Amendment 493 #
Proposal for a regulation
Article 53 – paragraph 9
Article 53 – paragraph 9
Amendment 499 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
1. The effects of a return decision shall be automatically suspended for as long as an applicant has a right to remain or is allowed to remain in accordanceuntil the time-limit within which to exercise their right to an effective remedy before a court or tribunal of first instance has expired and, where such a right has been exercised within this Articlee time-limit, pending the outcome of the remedy.
Amendment 503 #
Proposal for a regulation
Article 54 – paragraph 2
Article 54 – paragraph 2
Amendment 509 #
Proposal for a regulation
Article 54 – paragraph 3 – introductory part
Article 54 – paragraph 3 – introductory part
3. The applicant shall not have the right to remain pursuant to paragraph 2 where the competentA court or tribunal shall have the power to revoke the applicant’s right to remain pursuant to paragraph 1, in relation to a second level of appeal, upon request by the determining authority, where that determining authority has taken one of the following decisions:
Amendment 510 #
Proposal for a regulation
Article 54 – paragraph 3 – point a
Article 54 – paragraph 3 – point a
(a) a decision which rejects an application as unfounded or manifestly unfounded if at the time of the decision any of the circumstances listed in Article 40(1) and (5) apply [including safe country of origin] or in the cases subject to the border procedure;
Amendment 513 #
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];
Amendment 514 #
Proposal for a regulation
Article 54 – paragraph 3 – point d
Article 54 – paragraph 3 – point d
Amendment 516 #
Proposal for a regulation
Article 54 – paragraph 3 – point e
Article 54 – paragraph 3 – point e
Amendment 519 #
Proposal for a regulation
Article 54 – paragraph 4
Article 54 – paragraph 4
Amendment 525 #
Proposal for a regulation
Article 54 – paragraph 5 – introductory part
Article 54 – paragraph 5 – introductory part
5. For the purpose of paragraph 42, the following conditions shall apply:
Amendment 527 #
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 days 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 remedyrequest to revoke the right to remain shall be made by the determining authority within 5 days from the date when the applicant has lodged her/his appeal;
Amendment 529 #
Proposal for a regulation
Article 54 – paragraph 5 – point d – point i
Article 54 – paragraph 5 – point d – point i
(i) until the time-limit for requesting a court or tribunal toa court or tribunal has ruled on whether or not he/she shall be allowed to remain has expired;on the territory.
Amendment 530 #
Proposal for a regulation
Article 54 – paragraph 5 – point d – point ii
Article 54 – paragraph 5 – point d – point ii
Amendment 534 #
Proposal for a regulation
Article 54 – paragraph 6
Article 54 – paragraph 6
6. In cases of subsequent applications, by way of derogation from paragraph 6, point (d)and only where the application is made within one year of the decision by the determining authority ofn this Articlee first application, Member States may provide in national law that the applicant shall not have a right to remain, without prejudice to the respect of the principle of non-refoulement, if the appeal has been made 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, that a court or tribunal, acting on a request from the determining authority, may revoke the applicant’s right to remain in cases where it is immediately clear to the court that no new elements have been presented in accordance with Article 42(4).
Amendment 538 #
Proposal for a regulation
Article 54 – paragraph 7
Article 54 – paragraph 7
7. An applicant who lodges a further appeal against a first or subsequent appeal decision shall notmay have athe right to remain on the territory of the Member State, without prejudice to the possibility for a court or tribunal to allow the applicant to remain upon the applicant’s request or acting ex officio.’ revoked by a court or tribunal, acting on a request from the determining authority.
Amendment 539 #
Proposal for a regulation
Article 54 – paragraph 7
Article 54 – paragraph 7
7. An applicant who lodges a further appeal against a first or subsequent appeal decision shall notmay have athe right to remain on the territory of the Member State, without prejudice to the possibility for a court or tribunal to allow the applicant to remain upon the applicant’s request or acting ex officio.’ revoked by a court or tribunal, acting on a request from the determining authority.
Amendment 540 #
Proposal for a regulation
Article 54 a (new)
Article 54 a (new)