Legal provisions of COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leadersí meeting, September 2018 - EU monitor

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Legal provisions of COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leadersí meeting, September 2018

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CHAPTER I GENERAL PROVISIONS

Aticle 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 Co mm un ity E/ Union nS law as well as international law, including refugee protection and human rights obligations.

Aticle 2

Scope

1. This Directive applies to third-country nationals staying illegally on 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 1413 of

\E> Regulation (EU) 2016/399 <S] th e Schengen Borders Code, or who are

27 28

OJ L 160, 18.6.2011, p. 21

Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol 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 Confederationís association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19).

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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 the subject of extradition procedures.

3. This Directive shall not apply to persons enjoying the Comm unity right of free

movement \S> under Union law O as defined in Article 2(5) of \S> Regulation (EU)

2016/399 <3 the Schengen Borders Code.

Aticle 3

Definitions

For the purpose of this Directive the following definitions shall apply:

1. Ďthird-country nationalí means any person who is not a citizen of the Union within

the meaning of Article \S> 20 O 17(1) of the Treaty \S> on the Functioning of the European Union <3 and who is not a person enjoying the Community right of free movement E/ under Union law nS , as defined in point 5 of Article 2(5) of

\E> Regulation (EU) 2016/399 <athe Schengen Borde Code;

of a third-

2. Ďillegal stayí means the presence on the territory of a Member State,

country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 65 of E> Regulation (EU) 2016/399 <S] the Sch en gen Borders Code or other conditions for entry, stay or residence in that Member State;

3. Ďreturní means the process of a third-country national going back ---- whether in

voluntary compliance with an obligation to return, or enforced ----- to:

(a )- his or her country of origin, or

(b)- a country of transit in accordance with Comm unity E/ Union nS or bilateral readmission agreements or other arrangements, or

(c)- another third country, to which the thi rd - co untry national concerned voluntarily decides to return and in which he or she will be accepted;

4. Ďreturn decisioní means an administrative or judicial decision or act, stating or

declaring the stay of a t hird - country national to be illegal and imposing or stating an obli gati on to return;

5. Ďremovalí means the enforcement of the obligation to return, namely the physical

transporta ti on out of the Member State;

6. Ďentry baní means an administrative or judicial decision or act prohibiting entry into

and stay on the territory of the Member States for a specified period, accompanying a return decision;

7. Ďrisk of abscondingí means the existence of reasons in an individual case which are

based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond;

8. Ďvoluntary departureí means compliance with the obligation to return within the

time-limit fixed for that purpose in the return decision;

9. Ďvulnerable personsí 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.

Aticle 4

More favou rable provisions

1. This Directive shall be without prejudice to more favourable provisions of:

(a)† † † † † bilateral or multilateral agreements between the Co mm unity E/ Union nS or the Community \S> Union O 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 Comm unity E/ Union nS 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 - co untry nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall:

(a)† † † † †ensure that their treatm ent and level of protection are no less favourable than as

set out in Article 108(4) and (5) (limitations on use of coercive measures), Article 119(2)(a) (postponement of removal), Article 1714(1)(b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 1916 and 2017 (detention conditions) and

(b)

respect the principle of non-refoulement.

Article 5

Non-refoulement, best interests of the child, family life and state of health

When implementing this Directive, Member States shall take due account of:

(a)† † †the best interests of the child;

(b)† † †family life;

(c)† † †the state of health of the third-country national concerned, and respect the principle of non-refoulement.

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Article 6

Risk of absconding

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1. The objective criteria referred to in point 7 of Article 3 shall include at least the following criteria:

(a)† † †lack of documentation proving the identity;

(b)† † †lack of residence, fixed abode or reliable address;

(c)† † †lack of financial resources;

(d)† † †illegal entry into the territory of the Member States;

(e)† † †unauthorised movement to the territory of another Member State;

(f)† † †explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive;

(g)† † †being subject of a return decision issued by another Member State;

(h) non-compliance with a return decision, including with an obligation to return within the period for voluntary departure;

(i)† † †non-compliance with the requirement of Article 8(2) to go immediately to the

territory of another Member State that granted a valid residence permit or other authorisation offering a right to stay;

(j)† † †not fulfilling the obligation to cooperate with the competent authorities of the

Member States at all stages of the return procedures, referred to in Article 7;

(k) existence of conviction for a criminal offence, including for a serious criminal offence in another Member State;

(l)† † †ongoing criminal investigations and proceedings;

(m) using false or forged identity documents, destroying or otherwise disposing of existing documents, or refusing to provide fingerprints as required by Union or national law;

(n) opposing violently or fraudulently the return procedures;

(o) not complying with a measure aimed at preventing the risk of absconding referred to in Article 9(3);

(p) not complying with an existing entry ban.

2. The existence of a risk of absconding shall be determined on the basis of an overall assessment of the specific circumstances of the individual case, taking into account the objective criteria referred to in paragraph 1.

However, Member States shall establish that a risk of absconding is presumed in an individual case, unless proven otherwise, when one of the objective criteria referred to in points (m), (n), (o) and (p) of paragraph 1 is fulfilled.

Article 7

Obligation to cooperate

1. Member States shall impose on third-country nationals the obligation to cooperate

with the competent authorities of the Member States at all stages of the return procedures. That obligation shall include the following in particular:

(a) the duty to provide all the elements that are necessary for establishing or verifying identity;

(b)† † †the duty to provide information on the third countries transited;

(c)† † †the duty to remain present and available throughout the procedures;

(d)† † †the duty to lodge to the competent authorities of third countries a request for obtaining a valid travel document.

2. The elements referred to in point (a) of paragraph 1 shall include the third-country nationalsí statements and documentation in their possession regarding the identity, nationality or nationalities, age, country or countries and place or places of previous residence, travel routes and travel documentation.

3. Member States shall inform the third-country nationals about the consequences of not complying with the obligation referred to in paragraph 1.

^ 2008/115/EC (adapted) ^ new

CHAPTER II TERMINATION OF ILLEGAL STAY

Article 86

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 to 5.

2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third - country national concerned with this requirement, or where the third - country nationalís immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.

3. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third - c ountry national concerned is taken back by another Member State under bilateral agreements or arrangements existing on \S> 13 January 2009 <S] the da te of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.

4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that 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 authorisation offering a right to stay.

5. If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining

from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.

6. ^ Member States shall issue a return decision immediately after the adoption of a

decision ending a legal stay of a third-country national, including a decision not granting a third-country national refugee status or subsidiary protection status in

accordance with Regulation (EU) .../... \Qualification Regulation]. ^

This Directive shall not prevent Member States from adopting a \E> return O decision on the ending of a legal stay together with a return decision and/or \E> a decision ending a legal stay of a thi rd - country national, nS a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national

.TJ,

The first and second subparagraphs are without prejudice to the safeguards under Chapter III and under other relevant provisions of Union and national law.

* 2008/115/EC

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Article 97

Voluntary departure

1. A return decision shall provide for an appropriate period for voluntary departure of

between seven and ^ up to ^ thirty days, without prejudice to the exception referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the th ir d - country national concerned. In such a case, Member States shall inform the th ird - country nationals concerned of the possibility of submitting such an application.

The time period provided for in the first subparagraph shall not exclude the possibility for the third-country nationals concerned to leave earlier.

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The length of the period for voluntary departure shall be determined with due regard to the specific circumstances of the individual case, taking into account in particular the prospect of return.

law.

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* 2008/115/EC (adapted) ^ new

2. Member States shall, where necessary, extend the period for voluntary departure by 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 ex istence of other fa mily 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 the period for voluntary departure.

4. ^ Member States shall not grant a period for voluntary departure in following cases: <=Ā

(a )† † † † If E/ where nS there is a risk of absconding ^ determined in accordance with

Article 6<^ ;,

(b)† † † † † or if E/ where nS an application for a legal stay has been dismissed as manifestly unfounded or fraudulent;,

(c)† † † † † or if B? where nS the per son E/ third - country national nS concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period

shorter than een days.

Aticle 108

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 97(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 97. ^ Those measures shall include all measures necessary to confirm the identity of illegally staying third - country nationals who do not hold a valid travel document and to obtain such a document. ^

2. If a Member State has granted a period for voluntary departure in accordance with Article 97, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 97(4) arises during that period.

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 thi rd - country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third - country national concerned.

5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision

2004/573/EC.

6. Member States shall

provide for an effective forced-return monitoring system.

Article 119

Postponement of removal

1. Member States shall postpone removal:

(a)† † †when it would violate the principle of non-refoulement, or

(b)† † †for as long as a suspensory effect is granted in accordance with Article 1613(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:

(a)† † †the third-country nationalís physical state or mental capacity;

(b)† † †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 set out in Article 97(3) may be imposed on the third-country national concerned.

Article 1210

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 being given to the best interests of the child.

2. Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return.

Article 1311

Entry ban

1. Return decisions shall be accompanied by an entry ban:

(a)† † †if no period for voluntary departure has been granted, or

(b)† † †if the obligation to return has not been complied with.

In other cases return decisions may be accompanied by an entry ban.

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2. Member States may impose an entry ban, which does not accompany a return

decision, to a third-country national who has been illegally staying in the territory of the Member States and whose illegal stay is detected in connection with border checks carried out at exit in accordance with Article 8 of Regulation (EU) 2016/399, where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.

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* 2008/115/EC

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32. 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 however exceed five years if the third-country national represents a serious threat to public policy, public security or national security.

43. 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 or 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/ECof 29 April 2004 on the residence permit issued to third country nationals who are victims of trafficking in human beings or

who have been the subject of a n action to facil itate illegal immigration, who cooperate with the competent authorities30 shall not be subject of an entry ban without prejudice to paragraph 1, first subparagraph, point (b), 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.

54. Where a Member State is considering issuing a residence permit or other

authorisation offeri ng a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention imple m enting the Schengen Agree m ent31 Ā=> in

accordance

with Article 27 of Regulation (EU) 2018/XXX32 ^.

65. Paragraphs 1 to 54 shall apply without prejudice to the right to international

protection, as defined in point (a) of Article 2(a) of Directive 2011/95/EUCouncil Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted33, in the Member States.

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31 32

Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals

who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal

immigration, who cooperate with the competent authorities (OJ L 261, 6.8.2004, p. 19).

OJ L 239, 22.9.2000, p. 19.

Regulation (EU) 2018/Ö of the European Parliament and of the Council of [Ö] on the establishment,

operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the

Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No

1987/2006 [adoption pending].

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of

third country nationals or stateless persons as refugees or as persons who otherwise need


33

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Article 14

Return Management

1. Each Member State shall set up, operate, maintain and further develop a national return management system, which shall process all the necessary information for implementing this Directive, in particular as regards the management of individual cases as well as of any return-related procedure.

2. The national system shall be set up in a way which ensures technical compatibility allowing for communication with the central system established in accordance with Article 50 of Regulation (EU) Ö/Ö [EBCG Regulation].

3. Member States shall establish programmes for providing logistical, financial and other material or in-kind assistance, in accordance with national legislation, for the purpose of supporting the return of illegally staying third-country nationals who are nationals of third countries listed in Annex I to Council Regulation 539/200134.

Such assistance may include support for reintegration in the third country of return.

The granting of such assistance, including its kind and extent, shall be subject to the cooperation of the third-country national concerned with the competent authorities of the Member States as provided for in Article 7 of this Directive.

* 2008/115/EC

CHAPTER III PROCEDURAL SAFEGUARDS

Article 1512

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 to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection 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 presumed to understand.

Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that

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3. Member States may decide not to apply paragraph 2 to third country nationals 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 such cases 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 1613

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 1512(1), before a competent judicial or administrativeauthorityor a competent body composed of members who are impartial and who enjoy safeguards of independence.

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The third-country national concerned shall be granted the right to appeal before a single level of jurisdiction against the return decision where that decision is based on a decision rejecting an application for international protection taken in accordance with Regulation EU) Ö/Ö [Asylum Procedure Regulation] that was subject to an effective judicial review in accordance with Article 53 of that Regulation.

* 2008/115/EC

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2. The ^ judicial ^ authority or body mentioned in paragraph 1 shall have the power

to review decisions related to return, as referred to in Article 1512(1), including the possibility of temporarily suspending their enforcement, unless a tem porary suspension is already applicable under national legislati on .

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3. The enforcement of the return decision shall be automatically suspended during the

period for bringing the appeal at first instance and, where that appeal has been lodged within the set period, during the examination of the appeal, where there is a risk to breach the principle of non-refoulement. Should a further appeal against a first or subsequent appeal decision be lodged, and in all other cases, the enforcement of the return decision shall not be suspended unless a court or tribunal decides otherwise taking into due account the specific circumstances of the individual case upon the applicantís request or acting ex officio.

Member States shall ensure that a decision on the request for temporary suspension of the enforcement of a return decision is taken within 48 hours from the lodging of

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such a request by the third-country national concerned. In individual cases involving complex issues of fact or law, the time-limits set out in this paragraph may be extended, as appropriate, by the competent judicial authority.

Where no relevant new elements or findings have arisen or have been presented by the third-country national concerned which significantly modify the specific circumstances of the individual case, the first and the second subparagraphs of this paragraph shall not apply where:

(a)

(b)

the reason for temporary suspension referred thereto was assessed in the context of a procedure carried out in application of Regulation (EU) Ö/Ö [Asylum Procedure Regulation] and was subject to an effective judicial review in accordance with Article 53 of that Regulation;

the return decision is the consequence of the decision on ending the legal stay that has been taken following such procedures.

4. Member States shall establish reasonable time limits and other necessary rules to

ensure the exercise of the right to an effective remedy pursuant to this Article.

Member States shall grant a period not exceeding five days to lodge an appeal against a return decision when such a decision is the consequence of a final decision rejecting an application for international protection taken in accordance with Regulation (EU) Ö/Ö [Asylum Procedure Regulation].

* 2008/115/EC

53. The third-country national concerned shall have the possibility to obtain legal advice,

representation and, where necessary, linguistic assistance.

64. Member States shall ensure that the necessary legal assistance and/or representation

is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article15(3) to (6) of Directive 2005/85/EC.

Article 1714

Safeguards pending return

1. Member States shall, with the exception of the situation covered in Articles 1916 and

2017, 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 97 and during periods for which removal has been postponed in accordance with Article 119:

(a)† † †family unity with family members present in their territory is maintained;

(b)† † †emergency health care and essential treatment of illness are provided;

(c)† † †minors are granted access to the basic education system subject to the length of their stay;

(d)† † †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 97(2) decision will temporarily not be enforced.

or that the return

CHAPTER IV DETENTION FOR THE PURPOSE OF REMOVAL

* 2008/115/EC (adapted)

l=>

Article 1815

Detention

1. Unless other sufficient but less coercive measures can be applied effectively in a

specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

(a) (b)

there is a risk of absconding


determined in accordance with

Article 6; ^

the third-country national concerned avoids or hampers the preparation of return or the removal process;. E/ or nS

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(c) the third-country national concerned poses a risk to public policy, public security or national security.

All grounds

for detention shall be laid down in national law.

* 2008/115/EC

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 being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

(a) (b)

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 means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

The third-country national concerned shall be released immediately if the detention is not lawful.

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or

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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.

4. 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.

^ 2008/115/EC (adapted) ^ new

5. Detention shall be maintained for as long a period as the conditions laid down in

paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a li m ited ^ maximum ^ period of detention, which m ay not

* 2008/115/EC

6. Member States may not extend the period referred to in paragraph 5 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 owing to:

(a)† † †a lack of cooperation by the third-country national concerned, or

(b)† † †delays in obtaining the necessary documentation from third countries.

Article 1916

Conditions of detention

1. Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.

2. Third-country nationals in detention shall be allowed ó on request ó 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

exceed ^ of not less than three months and not more than V11 six months.

and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.

Article 2017

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 interests of the child shall be a primary consideration in the context of the detention of minors pending removal.

Article 2118

Emergency situations

1. In situations 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 periods for judicial review longer than those provided for under the third subparagraph of Article 1815(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 1916(1) and 2017(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 under this Directive.

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CHAPTER V BORDER PROCEDURE

Article 22

Border procedure

1. Member States shall establish return procedures applicable to illegally staying third-

country nationals subject to an obligation to return following a decision rejecting an

new

application for international protection taken by virtue of Article 41 of Regulation (EU) Ö/Ö [Asylum Procedure Regulation].

2. Except where otherwise provided in this Chapter, the provisions of Chapters II, III and IV apply to return procedures carried out in accordance with paragraph 1.

3. Return decisions issued in return procedures carried out in accordance with paragraph 1 of this Article shall be given by means of a standard form as set out under national legislation, in accordance with Article 15(3).

4. A period for voluntary departure shall not be granted. Member States shall however grant an appropriate period for voluntary departure in accordance with Article 9 to third-country nationals holding a valid travel document and fulfilling the obligation to cooperate with the competent authorities of the Member States at all stages of the return procedures established in accordance with Article 7. Member States shall require the third-country nationals concerned to hand over the valid travel document to the competent authority until departure.

5. Member States shall grant a period not exceeding 48 hours to lodge an appeal against the return decisions based on a final decision rejecting an application for international protection taken by virtue of Article 41 of Regulation (EU) Ö/Ö [Asylum Procedure Regulation] at the border or in transit zones of the Member States.

6. The enforcement of a return decision during the period for bringing the appeal at first instance and, where that appeal has been lodged within the period established, during the examination of the appeal, shall be automatically suspended where there is a risk of breach of the principle of non-refoulement and one of the following two conditions applies :

(a)

new elements or findings have arisen or have been presented by the third-country national concerned after a decision rejecting an application for international protection taken by virtue of Article 41 of Regulation (EU) Ö/Ö [Asylum Procedure Regulation], which significantly modify the specific circumstances of the individual case; or

(b)

the decision rejecting an application for international protection taken by virtue of Article 41 of Regulation(EU) Ö/Ö [Asylum Procedure Regulation] was not subject to an effective judicial review in accordance with Article 53 of that Regulation.

Where a further appeal against a first or subsequent appeal decision is lodged, and in all other cases, the enforcement of the return decision shall not be suspended unless a court or tribunal decides otherwise taking into account the specific circumstances of the individual case upon the applicantís request or acting ex officio.

Member States shall provide that a decision on the request by the person concerned for a temporary suspension of the enforcement of a return decision shall be taken within 48 hours from the lodging of such a request by the third-country national concerned. In individual cases involving complex issues of fact or law, the time-limits set out in this paragraph may be extended as appropriate by the competent judicial authority.

7. In order to prepare the return or carry out the removal process, or both, Member

States may keep in detention a third-country national who has been detained in accordance with point (d) of Article 8(3) of Directive (EU) Ö/Ö [recast Reception

Condition Directive] in the context of a procedure carried out by virtue of Article 41 of Regulation (EU) Ö/Ö [Asylum Procedure Regulation], and who is subject to return procedures pursuant to the provisions of this Chapter.

Detention shall be for as short a period as possible, which shall in no case exceed four months. It may be maintained only as long as removal arrangements are in progress and executed with due diligence.

When

the return decision cannot be enforced within the maximum period referred to

in this paragraph, the third-country national may be further detained in accordance with Article 18.

I * 2008/115/EC (adapted)_________|

CHAPTER VIV FINAL PROVISIONS

Article 2319

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 amend ments.

The Commmmon shall report for the first time by 24 December 2013 and focus on that

occasion in particular on the application of Arti cle 11, Arti c le 13(4) and Article 15 in Member

States. In relation to Article 13(4) the Commmmion shall assess in particular the additional

financial and administrative impact in Member States.

Aticle 20

Transposition

1. Member States shall bring into force the laws, re gulations and administrative provisions necessary to comply with this Directive . In relation to Article 13(4), Member States shall bring into force the la ws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2011. They shall forthwith communicate to the Commmmion the text of those measures .

When Member States adopt those measures, 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 Commmmion th e text of the ma in provisions

of national law which they adopt in the field covered by this Directive.

Article 2421

Relationship with the Schengen Convention

This Directive replaces the provisions of Articles 23 and 24 of the Convention implementing the Schengen Agreement.


Article 25

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 6 to 10, Articles 13 and 14(3), Article 16, Article 18 and Article 22 by [six months after the day of entry into force] and with Article 14(1) and (2) by [one year after the day of entry into force]. They shall immediately communicate the text of those measures to the Commission.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

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 26

Repeal

Directive 2008/115/EC is repealed with effect from [Ö] [the day after the second date referred to in the first subparagraph of Article 25(1)], without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law of the Directive set out in Annex I.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.

* 2008/115/EC

Article 22 27

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.


Articles [Ö] [articles which are unchanged by comparison with the repealed Directive] shall apply from [Ö] [the day after the second date referred to in the first subparagraph of Article 25(1)].

I * 2008/115/EC (adapted)_________|

Article 2823

Addressees

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community m> Treaties O .