|
|
|
|||||
|
THE EUROPEAN UNION |
|
|
|||||
|
|
|
|
||||
|
|
|
MIGR 24 CODEC 436 COMIX 275 |
|
|||
NOTE
1. The
Council (JHA) dealt with the above-mentioned proposal at its meeting on 18
April 2008. On this occasion, the President informed delegations concerning the
state of play of ongoing negotiations with the European Parliament. At the
trialogue which took place on 23 April 2008, a compromise was reached by the
Presidency with the European Parliament representatives. It was agreed that
this compromise would be tested by both institutions. The Presidency wishes to
emphasise that it is the result of an overall political compromise. The Presidency believes that the text represents the best
possible basis for agreement between Council and Parliament on the draft
Directive at this stage.
2. The
Permanent Representatives Committee is therefore invited:
- to
confirm that on the basis of the attached text an agreement can be reached
between Council and Parliament on the draft Directive;[1]
- take
note that the Presidency will inform the Chairman of the European Parliament's
Committee on Civil Liberties, Justice and Home Affairs accordingly by letter.
________________
Proposal for a
DIRECTIVE OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL
on common standards and procedures in Member States for returning
illegally staying third-country nationals
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Article 63(3)(b) thereof,
Having regard to the proposal
from the Commission[2],
Acting
in accordance with the procedure laid down in Article 251 of the Treaty,
Whereas:
(1) The Tampere European
Council of 15 and 16 October 1999 established a coherent approach in the field
of immigration and asylum, dealing together with the creation of a common
asylum system, a legal immigration policy and the fight against illegal
immigration.
(1a) The Brussels European Council of 4
and 5 November 2004 called for the establishment of an effective removal and
repatriation policy, based on common standards, for persons to be returned in a
humane manner and with full respect for their fundamental rights and dignity.
(1b) The Council of Europe Committee of
Ministers adopted on 4 May 2005 "Twenty guidelines on forced return" (CM(2005)40).
(2) Clear, transparent and
fair rules need to be fixed to provide for an effective return policy as a
necessary element of a well managed migration policy.
(3) This Directive should
establish a horizontal set of rules, applicable to all third-country nationals
who do not or who no longer fulfill the conditions for entry, stay or residence
in a Member State.
(4) Member States should
ensure that the ending of illegal stay of third-country nationals is carried
out through a fair and transparent 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 illegal residence. When using standard forms for decisions
related to return Member States should respect this principle and fully comply
with all applicable provisions of this Directive.
(5) The need for Community
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.
(5a) It is recognised that it is
legitimate for Member States to return illegally staying third-country
nationals. The pre-requisite for this assumption is that fair and efficient
asylum systems are in place, which fully respect the principle of
non-refoulement.
(5b) In
accordance with Council Directive 2005/85/EC, a third-country national who has
applied for asylum in a Member State should not be regarded as staying
illegally on the territory of the Member State until a negative decision on the
application, or a decision ending his or her right of stay as asylum seeker has
entered into force.
(6) Where there are no
reasons to believe that this would undermine the purpose of a return procedure,
voluntary return should be preferred over forced return and a period for
voluntary departure should be granted. In order to
promote voluntary return, Member States should provide for enhanced return assistance and
counselling and make best use of the relevant funding possibilities offered
under the European Return Fund.
(7) A common minimum set of
legal safeguards on decisions related to return should be established to
guarantee effective protection of the interests of the individuals concerned.
(8) 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
case of administrative controls or checks, these persons should be provided
with a written confirmation. Member States should enjoy wide discretion
concerning the form and the format of the written confirmation and may also
include it in decisions related to return adopted under this Directive.
(9) The use of coercive
measures should be expressly subject to the principles of proportionality and effectiveness
with regard to means taken and
objectives pursued. Minimum safeguards for the conduct of forced return should
be established, taking into account Council Decision 2004/573/EC of 29 April
2004 on the organisation of joint flights for removals from the territory of
two or more Member States, of third-country nationals who are subject of
individual removal orders[3]
[…].
(10) The effects of national return measures should be given
a European dimension by establishing an entry ban prohibiting entry into and stay in 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 years.[…]
(10a) It
should be for the Member States to decide whether or not review decisions
related to return imply the power for the reviewing authority or body to take
its own decision related to the return, in substitution for the earlier
decision.
(11) The use of detention for the
purpose of removal should
be limited and subject to the principle of proportionality with regard to means taken and objectives
pursued. Detention is
justified […] only […] to prepare return or carry out the removal process and if the application of less coercive measures
would not be sufficient.
(11a) Third-country nationals under detention should
be treated in a humane and dignified manner with respect for their fundamental
rights and in compliance with international and national law. Without
prejudice to the initial apprehension by law-enforcement authorities, regulated
by national legislation, detention should be as a rule carried out in
specialised detention facilities.
(15) Member States should have rapid
access to information on entry bans issued by other Member States. This
information sharing should take place in accordance with Regulation (EC) No
1987/2006 of the European Parliament and of the Council on the establishment,
operation and use of the Second Generation Schengen Information System (SIS II).[4]
(15a) Cooperation between the institutions involved
at all levels in the return process and the exchange and promotion of best
practices should accompany the implementation of this Directive and provide
European added value.
(16) Since the objective of this
Directive, namely to establish common rules concerning return, removal, use of
coercive measures, detention and entry bans, cannot be sufficiently achieved by
the Member States and can therefore, by reason of the scale and effects be
better achieved at Community level, the Community may adopt measures, in
accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary to achieve that
objective.
(17) Member States should give effect to
the provisions of this Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinions, membership of a national minority,
property, birth, disability, age or sexual orientation.
(18) 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 on Human Rights, respect
for family life should be a primary consideration of Member States when
implementing this Directive.
(19) Application of this Directive is
without prejudice to the obligations resulting from the Geneva Convention
relating to the Status of Refugees of 28 July 1951, as amended by the New York
Protocol of 31 January 1967.
(20) This Directive respects the
fundamental rights and observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
(21) In accordance with Articles 1 and 2
of the Protocol on the position of Denmark annexed to the Treaty on European
Union and the Treaty establishing the European Community, Denmark is not taking
part in the adoption of this Directive and is not bound by it or subject to its
application. Given that this Directive builds - to the extent that it applies
to third country nationals who do not fulfil or who no longer fulfil the
conditions of entry in accordance with the Schengen Borders Code[5]
- upon the Schengen acquis under the provisions of Title IV of Part Three of
the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said
Protocol, decide, within a period of six months after the adoption of this
Directive, whether it will implement it in its national law.
(22) As regards Iceland and Norway, this Directive constitutes - to the extent that
it applies to third country nationals who do not fulfil or who no longer fulfil
the conditions of entry in accordance with the Schengen Borders Code - a
development of provisions of the Schengen acquis within the meaning of the
Agreement concluded by the Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the association of those two
States with the implementation, application and development of the Schengen
acquis, which fall within the area referred to in Article 1, point C of Council Decision
1999/437/EC[6]
on certain arrangements for the application of that Agreement.
(23) As regards Switzerland, this Directive constitutes - to the extent that it applies to
third-country nationals who do not fulfil or who no longer fulfil the conditions
of entry in accordance with the Schengen Borders Code -a
development of provisions of the Schengen acquis within the meaning of the Agreement concluded between the European
Union, the European Community and the Swiss Confederation concerning the association
of the Swiss Confederation with the implementation, application and development
of the Schengen acquis[7], - which fall within the area referred to in Article 1, point [C],
of Decision 1999/437/EC read in conjunction with Article 3 of Council Decisions
2008/146/EC[8];
(24) As
regards Liechtenstein, this Directive constitutes - to the extent that it applies to third
country nationals who do not fulfil or who no longer fulfil the conditions of
entry in accordance with the Schengen Borders Code -a
development of provisions of the Schengen acquis within the meaning of the Protocol signed between
the European Union, the European Community, the Swiss Confederation and the
Principality of Liechtenstein on the accession of the Principality of
Liechtenstein to the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation's association
with the implementation, application and development of the Schengen acquis[9], which fall within the area referred to in Article
1, point [C], of Decision 1999/437/EC read in conjunction with Article 3 of
Council Decisions 2008/261EC[10];
HAVE ADOPTED THIS DIRECTIVE:
Chapter I
GENERAL
PROVISIONS
Article 1
Subject
matter
This Directive sets out common standards and
procedures to be applied in Member States for returning illegally staying
third-country nationals, in accordance with fundamental rights as general
principles of Community law as well as international law, including refugee
protection and human rights obligations.
Article 2
Scope
1. This Directive
applies to third-country nationals staying illegally in the territory of a
Member State.
2. Member States may
decide not to apply this Directive to third-country nationals who:
(a) are subject to a refusal of entry, in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.
(b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law or who are subject to extradition procedures.
3. This Directive
shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders
Code.
Article 3
Definitions
For the
purpose of this Directive the following definitions shall apply:
(a) ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code.
(b) ‘illegal stay’ means
the presence on the territory of a Member State, of a third-country national
who does not fulfil, or no longer fulfils the conditions of entry as set out in
Article 5 of the Schengen Borders Code or other conditions for entry, stay or
residence in that Member State;
(c) 'return' means the
process of going back - whether in voluntary
compliance with an obligation to return, or enforced - to:
-
one's country of origin or,
-
a country of transit in accordance with Community or bilateral readmission
agreements or other arrangements or;
-
another third country, to which
the third-country national concerned voluntarily decides to return and in
which he/she will be accepted […];
(d) ‘return decision’ means
an administrative or judicial decision or act, stating or declaring the stay of
a third-country national to be illegal and imposing or stating an obligation to
return;
(e) ‘removal’ means the
enforcement of the obligation to return, namely the physical transportation out
of the country;
(g) “entry ban” means an administrative or judicial decision or act prohibiting entry into and stay in the territory of the Member States for a specified period, accompanying a return decision.
(h) "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 subject to return procedures may
abscond.
(i) "voluntary
departure" means compliance with the obligation to return within the
time-limit fixed for that purpose in the return decision.
(j) "vulnerable
persons" means minors, unaccompanied minors, disabled people, elderly
people, pregnant women, single parents with minor children and persons who have
been subjected to torture, rape or other serious forms of psychological,
physical or sexual violence.
Article 4
More
favourable provisions
1. This Directive
shall be without prejudice to more favourable provisions of:
(a) bilateral
or multilateral agreements between the Community or the Community and its
Member States and one or more third countries;
(b) bilateral
or multilateral agreements between one or more Member States and one or more
third countries.
2. This
Directive shall be without prejudice to any provision which may be more favourable
for the third-country national laid down in the Community acquis relating to
immigration and asylum.
3. This
Directive shall be without prejudice to the right of the Member States to adopt
or maintain provisions that are more favourable to persons to whom it applies
provided that such provisions are compatible with this Directive.
4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2 (2)(a) Member States shall:
- ensure that their treatment and […] the level of protection is not less favourable than set out in Article 7 (4) and (5) (limitations on use of coercive measures), Article 8 paragraph 2, first indent (postponement of removal), Article 13 second and fourth indent (emergency health care and taking into account needs of vulnerable persons) and Articles 15 and 15a (detention conditions) and
- respect
the principle of non-refoulement.
Article 5
Non-refoulement,
best interest of the child,
family life and state of health
When implementing this Directive, Member States shall take due account of
(a) the
best interest of the child,
(b) family life;
(c) the state of health of the third country national concerned
and respect the principle of non-refoulement.
Chapter II
TERMINATION
OF ILLEGAL STAY
Article 6
Return
decision
1. Member States
shall issue a return decision to any third-country national staying illegally
on their territory, without prejudice to the exceptions referred to in
paragraphs 2, 2a, 3 and 4 […].
2. Third-country nationals staying illegally in the territory of a Member State and holding a valid residence permit or another authorisation offering a right to stay issued by another Member State, shall be required to go to the territory of that Member State immediately. In case of non-compliance by the third-country national concerned with this requirement, or where the third country national's immediate departure is required for reasons of national security or public policy, paragraph 1 shall apply.
2a. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory, if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing at the date of entry into force of this Directive. In this case the Member State which has taken back the third-country national concerned shall apply paragraph 1 […].
3. Member States
may, at any moment decide to grant an autonomous residence permit or another
authorization offering a right to stay for compassionate, humanitarian or other reasons to a third-country
national staying illegally on their territory. In this event no return decision
shall be issued. Where a return decision has already been issued, it shall be
withdrawn or suspended for the duration of validity of the residence permit or
other authorization offering a
right to stay.
4. If a third-country national staying
illegally in its territory is the subject of a pending procedure for renewing
his residence permit or any other permit offering the right to stay, that
Member State shall consider refraining from issuing a return decision, until
the pending procedure is finished, without prejudice to paragraph 5.
5. This Directive does not prevent Member States from adopting a decision on the ending of legal stay together with a return decision and/or a decision on removal and/or entry ban within one administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III of this Directive and under other relevant provisions of Community and national law.
Article
6a
Voluntary
departure
1. The return
decision shall provide for an appropriate period for voluntary departure ranging between seven days and thirty
days, without prejudice to the
exceptions referred to in paragraphs 2 and 4. Member States may provide in
their national legislation that such period shall only be granted following an
application of the third-country national concerned. In this case, Member
States shall inform the third-country nationals concerned about the possibility
of submitting such an application.
The
time period foreseen above does not exclude the possibility for the third-country
nationals concerned to leave earlier.
2. Member States shall,
when this is necessary, extend
the period for voluntary departure for an appropriate period, taking into
account the specific circumstances of the individual case, such as the length of stay, the existence of
children attending school and the existence of other family and social links.
3. Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of that period.
4. If there is a risk of absconding, […] or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent or if the person concerned poses a risk to public security, public order or national security Member States may refrain from granting a period for voluntary departure, or grant a period shorter than seven days.
Article 7
Removal
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 6a
or if the obligation to return has not been complied with within the period for
voluntary departure granted in accordance with Article 6a.
2. If the Member State has granted a period for voluntary departure in accordance with Article 6a the return decision may be enforced only after the period has ended, unless during this period, a risk, as referred to in Article 6a (4), arises.
3. Member States may
adopt a separate administrative or judicial decision or act ordering the
removal.
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 proportional 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.
5. In
carrying out removals by air, Member States shall take
into account the Common Guidelines on security provisions for joint removal by
air, attached to Decision 2004/573/EC.
6 Member
States shall provide for an effective forced return monitoring system.
Article
8
Postponement of removal
1. Member States shall postpone removal
- when it would violate the principle of non-refoulement or
- as long as suspensive effect is granted in accordance with Article 12 (2).
2. Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account:
- the person's physical state or mental capacity;
- technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.
3. If a removal is
postponed as provided for in paragraphs 1 and 2, the obligations foreseen in
Article 6a (3) may be imposed on the third-country national concerned.
Article 8a
Return and removal of
unaccompanied minors
1. Before
deciding to issue a return decision in respect of an unaccompanied minor,
assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration
given to the best interest of the child.
2. Before
removing an unaccompanied minor from its territory, the authorities of the
Member State shall be satisfied that he/she will be returned to a member of
his/her family, a nominated guardian or adequate reception facilities in the
state of return.
Article 9
Entry ban
1. Return decisions
shall be accompanied by an entry ban:
- if no period for voluntary
departure has been granted or,
- if the obligation to return has
not been complied with […].
In other cases
return decisions may be accompanied by an entry ban.
2. 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 five years. It may exceed
five years if the third-country national represents a serious threat to public policy, public security or to national security. […]
3. Member States shall […] consider withdrawing or suspending an entry ban
where a third-country national who is the subject of an entry ban issued in
accordance with paragraph 1 second subparagraph can demonstrate that he/she has
left the territory of a
Member State in full compliance with a return decision.
Victims of trafficking in human beings who have
been granted a residence permit pursuant to
Council Directive 2004/81/EC shall
not be subject of an entry ban without prejudice to paragraph 1, first
subparagraph, second indent and provided that the third-country national
concerned does not represent a threat to public policy, public security or
national security.
Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons.
Member States may withdraw or suspend an
entry ban in individual cases or certain categories of cases for other reasons.
4. Where a Member
State considers issuing a residence permit or another authorisation offering a
right to stay to a third-country national who is subject of an entry ban issued
by another Member State, it shall first consult the Member State having issued
the entry ban and shall take account of its interests in accordance with the
provisions of Article 25 of the Convention Implementing the Schengen Agreement.
5. Paragraphs 1 to 4
apply without prejudice to the right to international protection, as defined in
Article 2 (a) of Directive 2004/83/EC, in the Member States.
Article 10
(Deleted)
Chapter
III
PROCEDURAL
SAFEGUARDS
Article 11
Form
1. Return decisions and - if issued - entry-ban decisions and decisions on removal, shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.
The information on reasons in fact may be limited
where national law allows for the right of information to be restricted, in
particular in order to safeguard national security, defence, public security and the prevention,
investigation, detention and prosecution of criminal offences.
2. Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be supposed to understand.
3. Member States
may not apply paragraph 2 with
regard to persons who have illegally entered the territory of a Member State
and who have not subsequently obtained an authorisation or a right to stay in that Member State […].
In this case decisions
related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under
national legislation.
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 concerned.
Article 12
Remedies
1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 11 (1) before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
2. The above mentioned authority or body shall have the power to review decisions related to return, as referred to in Article 11(1), including the possibility of temporarily suspending its enforcement, unless temporary suspension is already applicable under national legislation.
3. The third-country
national concerned shall have the possibility to obtain legal advice,
representation and, where necessary, linguistic assistance.
4. If the
third-country national concerned does not have sufficient means to pay for
necessary legal aid,
he/she shall be given it free of charge, in accordance with the relevant national rules regarding legal aid.
Article 13
Safeguards
pending return
1. Member States shall, with the exception of the situation covered in Articles 15 and 15a, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 6a and during periods for which removal has been postponed in accordance with Article 8:
- family unity with family members present in their territory is maintained;
- emergency health care and essential treatment of illness is provided;
- minors are granted access to the basic education system subject to the length of their stay;
- special needs of vulnerable persons are taken into account.
2. Member
States shall provide the persons referred to in paragraph 1 with a written
confirmation in accordance with national legislation that the period for
voluntary departure has been extended in accordance with Article 6a(2) or that the
return decision will temporarily not be enforced.
Chapter IV
DETENTION
FOR THE PURPOSE OF REMOVAL
Article 14
Detention
1. Unless other sufficient but less coercive measures can be applied effectively in the concrete case, Member States may only keep in detention a third-country national, who is subject to
return procedures, in order to prepare return and/or carry out the removal
process, in particular when:
- there
is a risk of absconding or
- the
third-country national concerned avoids or hampers the preparation of return or
the removal process.
Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
2. Detention shall be ordered by administrative or judicial authorities.
Detention
shall be ordered in writing with reasons in fact and in law.
When detention has been ordered by administrative authorities, Member States shall:
-
either provide
for a speedy judicial
review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention,
-
or grant the
third-country national concerned the right to take proceedings by which the
lawfulness of detention shall be subject to a speedy judicial review to be
decided on as speedily as
possible from the launch of
the relevant proceedings; in this case Member States shall immediately inform
the third-country national concerned about the possibility of submitting such
an application.
The third country national concerned shall be
released immediately if the detention is not lawful.
3. In every case, detention shall be reviewed at reasonable intervals
of time either on application by the third-country national concerned or ex
officio. In the case of prolonged detention periods, reviews shall be subject to
the supervision of a judicial authority.
3a. When it appears that a reasonable prospect of removal no longer
exists for legal or other considerations or the conditions laid down in
paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
4. Detention
shall be maintained for as long a period as the conditions laid down in
paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may
not exceed six months.
5. Member States may not extend the period referred to in paragraph 4 except for a limited period not
exceeding a further twelve months in accordance with national law in cases where regardless of all their
reasonable efforts the removal operation is likely to last longer
-
due to a lack of co-operation by the
third country national concerned, or
-
due to delays in
obtaining necessary documentation from third countries,
[…]
6. [moved
to paragraph 3a]
Article 15
Conditions
of detention
1. Detention shall be carried out as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and has to resort to prison accommodation, the third-country nationals under detention shall be separated from ordinary prisoners.
2. Third-country nationals under detention shall be allowed – upon request - to establish in due time contact with legal representatives, family members and competent consular authorities.
3. Particular attention shall be paid to the situation of vulnerable
persons. Emergency health care and essential
treatment of illness shall be provided.
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.
5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. This includes the information on their entitlement under national law to contact organizations and bodies referred to in paragraph 4.
Article 15a
Detention of minors and families
1. Unaccompanied
minors and families with minors shall only be detained as a measure of last
resort and for the shortest appropriate period of time.
2. Families detained
pending removal shall be provided with separate accommodation guaranteeing
adequate privacy.
3. Minors in
detention shall have the possibility to engage in leisure-activities, including
play- and recreational activities appropriate to their age, and shall have -
depending on the length of their stay - access to education.
4. Unaccompanied
minors shall as far as possible be provided with accommodation in institutions
provided with personnel and facilities which take into account the needs of
persons of their age.
5. The
best interest of the child shall be a primary consideration in the context of
the detention of minors pending removal.
Article 15b
Emergency situations
1. In
cases where an exceptionally large number of third-country nationals to be
returned places an unforeseen heavy burden on the capacity of the detention
facilities of a Member State or on its administrative or judicial staff, such a
Member State may, as long as the exceptional situation persists, decide to
allow for longer periods for judicial review than those set out in Article
14(2) and to take urgent measures in respect of the conditions of detention
derogating from those set out in Articles 15(1) and 15a(2).
2. When resorting to such exceptional
measures, the Member State concerned shall inform the Commission. It shall also
inform the Commission as soon as the reasons for applying these exceptional
measures have ceased to exist.
3. Nothing in this Article shall be
interpreted as allowing Member States to derogate from their general obligation
to take all appropriate measures, whether general or particular, to ensure
fulfilment of their obligations arising out of this Directive.
Chapter V
APPREHENSION
IN OTHER MEMBER STATES
Article 16
Deleted
Chapter VI
FINAL
PROVISIONS
Article 17
Reporting
The Commission shall report every three years to
the European Parliament and the Council on the application of this Directive in
the Member States and, if appropriate, propose amendments.
The Commission shall report for the first time
three years after the date referred to in Article 18(1) at the latest and focus
at this occasion in particular on the application of Articles 9 and 14 in
Member States.
Article 18
Transposition
1. Member States shall
bring into force the laws, regulations and administrative provisions necessary
to comply with this Directive by, (24 months from the date of publication in
the Official Journal of the European Union) at the latest. They shall forthwith communicate to the Commission the
text of those provisions.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.
2. Member States
shall communicate to the Commission the text of the main provisions of national
law which they adopt in the field covered by this Directive.
Article 19
Relationship
with the Schengen Convention
This Directive replaces the provisions of
Articles 23 and 24 of the Convention implementing the Schengen Agreement
Article 20
Repeal
Deleted
Article 21
Entry into
force
This Directive shall enter into force on the
twentieth day following that of its publication in the Official Journal of
the European Union.
Article 22
Addressees
This Directive is addressed to the Member
States in accordance with the Treaty establishing the European Community.
Done at
Brussels, […]
For the
European Parliament For
the Council
The President The
President