Considerations on COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leaders’ meeting, September 2018 - EU monitor

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Considerations on COM(2018)634 - Common standards and procedures in Member States for returning illegally staying third-country nationals (recast) - Contribution to the Leaders’ meeting, September 2018

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(1) A number of amendments are to be made to Directive 2008/115/(EC) of the European

Parliament and of the Council10. In the interests of clarity, that Directive should be

recast.

(2) An effective and fair return policy is an essential part of the Union's approach to better

manage migration in all aspects, as reflected in the European Agenda on Migration of

May 201511.

(3) On 28 June 2018, in its conclusions, the European Council underlined the necessity to

significantly step up the effective return of irregular migrants, and welcomed the intention of the Commission to make legislative proposals for a more effective and coherent European return policy.

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98).

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I * 2008/115/EC recital 1 (adapted)]

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 a gainst i llegal immigration.

^ 2008/115/EC recital 2 (adapted)

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.

^ 2008/115/EC recital 3 (adapted)

On 4 May 2005 the Committee of Ministers of the Council of Europe adopted guidelines on forced return’.

^ 2008/115/EC recital 4 (adapted) ^ new

(4) E/ That European return policy should be based on common standards, for persons to

be returned in a humane manner and with full respect for their fundamental rights and dignity nS ^, as well as international law, including refugee protection and human rights obligations. ^Clear, transparent and fair rules need to be E/ established nS fixed to provide for an effective return policy as a necessary element of a well

*-$ which serves as a deterrent to irregular migration and

managed migration policy

ensures coherence with and contributes to the integrity of the Common European

Asylum System and the legal migration system ^ .

(5) This Directive

| * 2008/115/EC recital 5______________|

should establish a horizontal set of rules, applicable to all th ir d - country

nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.

| * 2008/115/EC recital 6______________|

(6) 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 an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal,

Member States should respect that principle and fully comply with all applicable provisions of this Directive.

(7) The link between the decision on ending of the legal stay of a third-country national

and the issuing of a return decision should be reinforced in order to reduce the risk of absconding and the likelihood of unauthorised secondary movements. It is necessary to ensure that a return decision is issued immediately after the decision rejecting or terminating the legal stay, or ideally in the same act or decision. That requirement should in particular apply to cases where an application for international protection is rejected, provided that the return procedure is suspended until that rejection becomes final and pending the outcome of an appeal against that rejection.

I * 2008/115/EC recital 7 (adapted)]

(8) The need for Comm un ity E/ Union nS 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 sustai nab le return.

^ 2008/115/EC recital 8

(9) It is recognised that it is legitimate for Member States to return illegally staying third-

country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.

^ 2008/115/EC recital 9

(10) In accordance with Council Directive 2005/85/EC of 1 December 2005 on minimum

standards on procedures in Member States for granting and withdrawing refugee status12, a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that 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.

Q

(11) To ensure clearer and more effective rules for granting a period for voluntary

departure and detaining a third-country national, determining whether there is or there is not a risk of absconding should be based on Union-wide objective criteria. Moreover this Directive should set out specific criteria which establish a ground for a rebuttable presumption that a risk of absconding exists.

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States


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(12) To reinforce the effectiveness of the return procedure, clear responsibilities for third-

country nationals should be established, and in particular the obligation to cooperate with the authorities at all stages of the return procedure, including by providing the information and elements that are necessary in order to assess their individual situation. At the same time, it is necessary to ensure that third-country nationals are informed of the consequences of not complying with those obligations, in relation to the determination of the risk of absconding, the granting of a period for voluntary departure and the possibility to impose detention, and to the access to programmes providing logistical, financial and other material or in-kind assistance.

V 2008/115/EC             recital              10

(adapted)

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(13) Where

there are no reasons to believe that            the granting of a period for voluntary

departure nS thi s would undermine the purpose of a return procedure, voluntary return should be preferred over forced return and a ^ a n appropriate ^ period for voluntary departure ^ of up to thirty days, depending in particular on the prospect of return, ^ should be granted. ^ A period for voluntary departure should not be granted where it has been assessed that third-country nationals pose a risk of absconding, have had a previous application for legal stay dismissed as fraudulent or manifestly unfounded, or they pose a risk to public policy, public security or national security. ^ An extension of the period for voluntary departure should be provided for when considered necessary because of the specific circumstances of an individual case. 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.

(14) In order to promote voluntary return, Member States should have operational

programmes providing for enhanced return assistance and counselling, which may include support for reintegration in third countries of return, taking into account the common standards on Assisted Voluntary Return and Reintegration Programmes developed by the Commission in cooperation with Member States and endorsed by the Council.

^ 2008/115/EC recital 11

(15) 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.

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(16) The deadline for lodging an appeal against decisions related to return should provide enough time to ensure access to an effective remedy, while taking into account that long deadlines can have a detrimental effect on return procedures. To avoid possible misuse of rights and procedures, a maximum period not exceeding five days should be granted to appeal against a return decision. This provision should only apply following a decision rejecting an application for international protection which became final, including after a possible judicial review.

(17) The appeal against a return decision that is based on a decision rejecting an application for international protection which was already subject to an effective judicial remedy should take place before a single level of jurisdiction only, since the third-county national concerned would have already had his or her individual situation examined and decided upon by a judicial authority in the context of the asylum procedure.

(18) An appeal against a return decision should have an automatic suspensive effect only in cases where there is a risk of breach of the principle of non-refoulement.

(19) In cases where the principle of non-refoulement is not at stake, appeals against a return decision should not have an automatic suspensive effect. The judicial authorities should be able to temporarily suspend the enforcement of a return decision in individual cases for other reasons, either upon request of the third-country national concerned or acting ex officio, where deemed necessary. Such decisions should, as a rule, be taken within 48 hours. Where justified by the complexity of the case, judicial authorities should take such decision without undue delay.

(20) To improve the effectiveness of return procedures and avoid unnecessary delays, without negatively affecting the rights of the third-country nationals concerned, the enforcement of the return decision should not be automatically suspended in cases where the assessment of the risk to breach the principle of non-refoulement already took place and judicial remedy was effectively exercised as part of the asylum procedure carried out prior to the issuing of the related return decision against which the appeal is lodged, unless the situation of the third-country national concerned would have significantly changed since.

* 2008/115/EC            recital            11

(adapted)

(21) The necessary legal aid should be made available ^ , upon request, ^ to those who

lack sufficient resources. Member States should provide in thei r nNational legislation

E/ should establish a list of instances where nS considered necessary.

for which cases legal aid is to be

* 2008/115/EC recital 12

(22) The situation of third-country nationals who are staying illegally but who cannot yet

be removed should be addressed. Their basic conditions of subsistence should be

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defined according to national legislation. In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive.

I * 2008/115/EC recital 13___________|

(23) The use of coercive measures should be expressly subject to the principles of

proportionality and effectiveness with regard to the means used and objectives pursued. Minimum safeguards for the conduct of forced return should be established, taking into account Council Decision 2004/573/ ECof 29 April 2004 on the

organisation of joint flights forremmvals frommm e territory of two or more Member

States, of third country nationals who are subjects of individual removal orders13. Member States should be able to rely on various possibilities to monitor forced return.

| ^ 2008/115/EC recital 14___________|

(24) The effects of national return measures should be given a European dimension by

establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five years. In this context, particular account should be taken of the fact that the third-country national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban.

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(25) When an illegally staying third-country national is detected during exit checks at the

external borders, it may be appropriate to impose an entry ban in order to prevent future re-entry and therefore to reduce the risks of illegal immigration. When justified, following an individual assessment and in application of the principle of proportionality, an entry ban may be imposed by the competent authority without issuing a return decision in order to avoid postponing the departure of the third-country national concerned.

| ^ 2008/115/EC recital 15___________|

(26) It should be for the Member States to decide whether or not the review of decisions

related to return implies the power for the reviewing authority or body to substitute its own decision related to the return for the earlier decision.

Council Decision 2004/573/EC of 29 April 2004

on the organisation of joint flights for removals from the

Member States

territory of two or more Member States, of third-country nationals who are subjects of individual removal


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I * 2008/115/EC recital 16___________|

(27) The use of detention for the purpose of removal should be li m ited and subject to the

principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.

(28) Detention should be imposed, following an individual assessment of each case, where there is a risk of absconding, where the third-country national avoids or hampers the preparation of return or the removal process, or when the third country national concerned poses a risk to public policy, public security or national security.

(29) Given that maximum detention periods in some Member States are not sufficient to ensure the implementation of return, a maximum period of detention between three and six months, which may be prolonged, should be established in order to provide for sufficient time to complete the return procedures successfully, without prejudice to the established safeguards ensuring that detention is only applied when necessary and proportionate and for as long as removal arrangements are in progress.

(30) This Directive should not preclude Member States from laying down effective, proportionate and dissuasive penalties and criminal penalties, including imprisonment, in relation to the infringements of migration rules, provided that such penalties are compatible with the objectives of this Directive, do not compromise the application of this Directive and are in full respect of fundamental rights.

| * 2008/115/EC recital 17_____________|

(31) Third-country nationals in 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, as a rule, take place in specialised detention facilities.

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(32) Without prejudice to the possibility for Member States not to apply this Directive with

regard to the cases referred to in Article 2(2)(a), when a border procedure is applied in accordance with Regulation (EU) …/… [Asylum Procedure Regulation], a specific border procedure should follow for the return of illegally staying third-country nationals whose application for international protection under that asylum border procedure has been rejected in order to ensure direct complementarity between the asylum and return border procedures and prevent gaps between the procedures. In such cases, it is necessary to establish specific rules that ensure the coherence and synergy between the two procedures and preserve the integrity and effectiveness of the whole process.

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(33) To ensure effective return in the context of the border procedure, a period for voluntary departure should not be granted. However, a period for voluntary departure should be granted to third-country nationals who hold a valid travel document and cooperate with the competent authorities of the Member States at all stages of the return procedures. In such cases, to prevent absconding, third-country nationals should hand over the travel document to the competent authority until their departure.

(34) For a rapid treatment of the case, a maximum time limit is to be granted to appeal against a return decision following a decision rejecting an application for international protection adopted under the border procedure and which became final.

(35) An appeal against a return decision taken in the context of the border procedure should have an automatic suspensive effect in cases where there is a risk of breach of the principle of non-refoulement, there has been a significant change in the situation of the third-country national concerned since the adoption under the asylum border procedure of the decision rejecting his or her application for international protection, or if no judicial remedy was effectively exercised against the decision rejecting his or her application for international protection adopted under the asylum border procedure.

(36) It is necessary and proportionate to ensure that a third country national who was already detained during the examination of his or her application for international protection as part of the asylum border procedure may be kept in detention in order to prepare the return and/or carry out the removal process, once his or her application has been rejected. To avoid that a third country national is automatically released from detention and allowed entry into the territory of the Member State despite having been denied a right to stay, a limited period of time is needed in order to try to enforce the return decision issued at the border. The third-country national concerned may be detained in the context of the border procedure for a maximum period of four months and as long as removal arrangements are in progress and executed with due diligence. That period of detention should be without prejudice to other periods of detention established by this Directive. Where it has not been possible to enforce return by the end of the former period, further detention of the third-country national may be ordered under another provision of this Directive and for the duration provided for therein.

* 2008/115/EC            recital            18

(adapted)

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(37) Member States should have rapid access to information on ^ return decisions and ^

entry bans issued by other Member States. This info rm ation sharing \S> Su ch access nS should take place in accordance with ^ Regulation (EU) ...I... [Regulation on the use of the Schengen Information System for the return of illegally staying third country nationals] and ^ Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment,

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[Regulation on the use of the Schengen Information System for the return of illegally staying third country

operation and use of the second generation Schengen Informati on System (SI S II)15 ^ , including to facilitate mutual recognition of these decisions amongst competent authorities, by virtue of Council Directive 2001/40/EC16 and Council Decision

2004/191/EC17 ^ .

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(38) Establishing return management systems in Member States contributes to the

efficiency of the return process. Each national system should provide timely information on the identity and legal situation of the third country national that are relevant for monitoring and following up on individual cases. To operate efficiently and in order to significantly reduce the administrative burden, such national return systems should be linked to the Schengen Information System to facilitate and speed up the entering of return-related information, as well as to the central system established by the European Border and Coast Guard Agency in accordance with Regulation (EU) …/… [EBCG Regulation].

* 2008/115/EC recital 19 ^ new

(39) Cooperation

between the institutions involved at all levels in the return process and the exchange and promotion of best practices ^ , including by taking into account and regularly updating the Return Handbook to reflect legal and policy developments, ^ should accompany the implementation of this Directive and provide European added value.

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(40) The Union provides financial and operational support in order to achieve an effective

implementation of this Directive. Member States should make best use of the available Union financial instruments, programmes and projects in the field of return, in particular under Regulation (EU) …/… [Regulation establishing the Asylum and Migration Fund], as well as of the operational assistance by the European Border and Coast Guard Agency according to Regulation (EU) …/… [EBCG Regulation]. Such support should be used in particular for establishing return management systems and programmes for providing logistical, financial and other material or in-kind assistance to support the return – and where relevant the reintegration – of illegally staying third-country nationals.

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Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the

establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381,

28.12.2006, p. 4).

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of

third-country nationals (OJ L 149, 2.6.2001, p. 34).

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of

third-country nationals, OJ L 149, 2.6.2001, p. 34; and Council Decision 2004/191/EC of 23 February 2004

setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting

from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of


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* 2008/115/EC             recital              20

(adapted)

(41) 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 its scale and effects, be better achieved at Commun ity \S> Union O level, the Commun ity E/ Union nS may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty \S> on the European Union <3 . 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.

| ^ 2008/115/EC recital 21_____________|

(42) Member States should implement 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.

| ^ 2008/115/EC recital 22_____________|

(43) In line with the 1989 United Nati ons Conventi on on the Rights of the Child, the ‘best interests of the child’ should be a primary consideration of Member States when

implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive.

^ 2008/115/EC recital 23

(44) 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.

^ 2008/115/EC recital 24

(45) This Directive respects the fundamental rights and observes the principles recognised

in particular by the Charter of Fundamental Rights of the European Union.

.n,

(46) The purpose of an effective implementation of the return of third-country nationals

who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member States, in accordance with this Directive, is an essential component of the

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comprehensive efforts to tackle irregular migration and represents an important reason of substantial public interest.

(47) Member States' return authorities need to process personal data to ensure the proper

implementation of return procedures and the successful enforcement of return decisions. The third countries of return are often not the subject of adequacy decisions adopted by the Commission under Article 45 of Regulation (EU) 2016/679 of the European Parliament and of the Council18, or under Article 36 of Directive (EU) 2016/68019, and have often not concluded or do not intend to conclude a readmission agreement with the Union or otherwise provide for appropriate safeguards within the meaning of Article 46 of Regulation (EU) 2016/679 or within the meaning of the national provisions transposing Article 37 of Directive (EU) 2016/680. Despite the extensive efforts of the Union in cooperating with the main countries of origin of illegally staying third-country nationals subject to an obligation to return, it is not always possible to ensure such third countries systematically fulfil the obligation established by international law to readmit their own nationals. Readmission agreements, concluded or being negotiated by the Union or the Member States and providing for appropriate safeguards for the transfer of data to third countries pursuant to Article 46 of Regulation (EU) 2016/679 or pursuant to the national provisions transposing Article 36 of Directive (EU) 2016/680, cover a limited number of such third countries. In the situation where such agreements do not exist, personal data should be transferred by Member States' competent authorities for the purposes of implementing the return operations of the Union, in line with the conditions laid down in Article 49(1)(d) of Regulation (EU) 2016/679 or in the national provisions transposing Article 38 of Directive (EU) 2016/680.

* 2008/115/EC             recital              25

(adapted)

(48) In accordance with Articles 1 and 2 of the Protocol E> No 22 O on the position of

Denmark annexed to the Treaty on European Union and the Treaty \E> on the

functioning of the European U nion <S] esta bli shing the European Commun ity ,

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 Code20 \S> Regulation (EU) 2016/399 of the European Parliament and of the Council O — upon the

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Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection

of natural persons with regard to the processing of personal data and on the free movement of such data, and

repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119 4.5.2016, p. 1).

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection

of natural persons with regard to the processing of personal data by competent authorities for the purposes

of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal

penalties, and on the free movement of such data, and repealing Council Framework Decision

2008/977/JHA (OJ L 119 4.5.2016, p. 89).

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing

a Community Code on the rules governing the movement of persons across borders (Schengen Borders

Code) (OJ L 105, 13.4.2006, p. 1).

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), OJ L 77,

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Schengen acquisunder the provi s io ns of Title     IV of Part Three of the Treaty

establishing the European Community , Denmark   shall, in accordance with Article 5

E/ 4 nS of the said E/ that nS Protocol, decide,   within a period of six months after

the adoption of E/ the Council has decided on   nS this Directive, whether it will implement it in its national law.

V 2008/115/EC             recital              26

(adapted)

(49) To the extent that it applies to th ird - country nationals who do not fulfil or who no

longer fulfil the conditions of entry in accordance with E/ Regulation (EU) 2016/399 <3 the Schengen Borders Code, this Directive constitutes a development of E/ the nS provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis22;; .Moreover, in accordance with Articles 1 and 2 of the Protocol E/ No 21 nS on the position of the United Kingdom and Ireland E/ in respect of the area of freedom, security and justice, <3 annexed to the Treaty on European Union and to the Treaty E> on the

Functioning of the European Union <Z1 establi shing the European Commun ity , and

without prejudice to Article 4 of the said E>that<S] Protocol, the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application.

* 2008/115/EC             recital              27

(adapted)

(50) To the extent that it applies to th ird - country nationals who do not fulfil or who no

longer fulfil the conditions of entry in accordance with E/ Regulation (EU) 2016/399 <X]the Schengen Borders Code, this Directive constitutes a development of E/ the nS provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s reques t to take part in some of the provisions of the Schengen acquis23;. Moreover, in accordance with Articles 1 and 2 of the Protocol E> No 21 O on the position of the United Kingdom and Ireland E/ in respect of the area of freedom, security and justice, O annexed to the Treaty on European Union and to the Treaty

E> on the Functioning of the European Union <S] estab li shing the European

Community, and without prejudice to Article 4 of the said E>that<S] Protocol, Ireland is not taking part in the adoption of this Directive and is therefore not bound by it in its entir ety or subject to its application.

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Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43). Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the


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* 2008/115/EC             recital              28

(adapted)

(51) 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 \E> Regulation (EU) 201 6/399 O the Schengen Borders Code — a development of E>the<X] 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 ^ latters’ <S]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/EC24 on certain arran gem ents for the application of that Agreement.

* 2008/115/EC             recital              29

(adapted)

(52) 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 \E> Regulation (EU) 2016/399 <S] the Sch en gen Borders Code — a development of E/ the nS provisions of the Schengen acquis within the meaning of 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 , 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 Decision 2008/146/EC26on the con clusion, on behalf of the European Community, of that Agreement.

* 2008/115/EC             recital              30

(adapted)

(53) 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 \E> Regulation (EU) 2016/399 <S] the Sch en gen Borders Code — a development of E/ the nS provisions of the Schengen acquis within the meaning 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 Confederation’s association

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Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application 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 (OJ L 176, 10.7.1999, p. 31). OJ L 53, 27.2.2008, p. 52.

Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and


26

Schengen acquis27,

with the implementation, application and development of the

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 Decision 2011/350/EU28 2008/261/EC29on the signature, on behalf of the European Community, and on the provisional application of, certain provisions of that Protocol.

.Q,

(54) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

(55) This Directive should be 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,

|* 2008/115/EC (adapted)________|