Act On The Various Provisions Concerning The Procedure Before The Council Of Litigation Of Foreigners And The Council Of State

Original Language Title: Loi portant des dispositions diverses concernant la procédure devant le Conseil du Contentieux des étrangers et devant le Conseil d'Etat

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2014000394&caller=list&article_lang=F&row_id=700&numero=742&pub_date=2014-05-21&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2014-05-21 Numac: 2014000394 FEDERAL Interior PUBLIC SERVICE April 10, 2014. -Act for various provisions concerning the proceedings before the Council of litigation before the Council of State PHILIPPE, King of the Belgians and foreigners, to all present and future salvation.
The Chambers have adopted and we endorse the following: title I:. -Provisions General Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
S. 2. this Act partially transposes Directive 2013/32/EU of the European Parliament and of the Council of June 26, 2013 on common procedures for the granting and the withdrawal of international protection (recast), i.e. articles 41 and 46.
TITLE II. -The procedure in extreme urgency with the Council of litigation of foreigners Chapter 1. -Amendments to the Act of 15 December 1980 on access to the territory, residence, establishment and removal of aliens arts
3. in article 39/28, § 2, paragraph 3, of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners, inserted by the law of September 15, 2006, the words "articles 39/82, § 4, paragraph 2 and 39/85, paragraph 2" shall be replaced by the words "articles 39/82, § 4, paragraph 6, and 39/85" § 2, paragraph 1".
S. 4. article 39/57, § 1, of the same law, replaced by the law of May 6, 2009, and amended by law of December 29, 2010 to May 8, 2013, is supplemented by a paragraph worded as follows: "the application referred to article 39/82, § 4, paragraph 2, is instituted by application, within ten days of notification of the decision against which it is directed." If only it is a second measure of expulsion or refoulement, the period is reduced to five days. "."
S. 5 A section 39/82 of the Act, inserted by the law of 15 September 2006, partially annulled by judgment No. 81/2008 of the Constitutional Court and amended by the laws of May 6, 2009 and may 8, 2013, the following changes are made: 1 ° § 2, paragraph 1, is supplemented by the following sentence: "this last condition is among other fulfilled if a serious argument has been invoked on the basis of fundamental human rights in particular the rights from which no derogation is possible under article 15, paragraph 2, of the European Convention for the safeguarding of the rights of man and fundamental freedoms. ";
2 ° § 4, paragraph 2, is replaced by the following subparagraphs: ' when abroad is the subject of a measure of expulsion or refoulement whose execution is imminent, especially when it is held in a specific place under articles 74/8 and 74/9 or is put at the disposal of the Government, it can, if it has not yet requested the suspension by the ordinary " , request a suspension of execution in extreme urgency of this measure in the period referred to in article 39/57, § 1, paragraph 3.
If the request appears obviously late, the speaker of the House before it or the judge to the foreigners litigation designated indicated in its order and shall convene the parties to appear within 24 hours of the receipt of the application without delay.
President of the room or the foreigners litigation judge shall review attentive and rigorous of all the evidence brought to its attention, in particular those who are likely to indicate that there are grounds to believe that the operation of the contested decision would expose the applicant to the risk of being subjected to the violation of the fundamental rights of man to which no derogation is possible under article 15 , paragraph 2, of the European Convention for the safeguarding of the rights of man and fundamental freedoms, which is the subject of attentive and rigorous control.
The demand for suspension in extreme urgency is examined within 48 hours following receipt by the president of the Chamber or by the judge at the foreigners litigation. That period is however be extended to five days following the day of receipt by the Commission of this application, where the remoteness or the effective discharge from abroad is provided at a later date to the period of eight days.
If the president of the Chamber or the foreigners litigation judge pronounces within the time limit, he must notify the first president or the president. It takes the necessary measures for a decision, as appropriate, either to no later than two hours after receipt of the request, or, as soon as possible. In both cases, it can especially to discuss the matter and decide himself.
Notwithstanding paragraphs which precede, the speaker of the House before it or the judge in litigation of foreigners designated by him is pronounced in priority on the admissibility of the application, if necessary without convening the parties when the following conditions are met: 1 ° there is a second measure of expulsion or refoulement, and (2) the request is manifestly late, and 3 ° the request is made less than 12 hours before the expected execution time measurement , and 4 ° the applicant and, where appropriate, counsel are informed at least 48 hours before the time scheduled for the implementation of the measure.
If he declares the claim inadmissible, the judgment terminates the procedure. If he declares the application admissible, the proceedings are continued as provided for in sections 3 to 6 "."
S. 6. article 39/83 of the Act, restored by the law of May 6, 2009, and amended by the law of May 8, 2013, is replaced by the following: 'article 39/83. Except with the agreement of the person concerned, it shall be made in the enforcement of the expulsion or refoulement measure abroad is the subject, after the expiry of the time limit for appeal referred to in article 39/57, § 1, paragraph 3, or, when demand for suspension in extreme urgency for the implementation of this measure was introduced in this period, only after the Board dismissed the application. "."
S. 7. article 39/85 of the Act, inserted by the law of 15 September 2006, partially annulled by judgment No. 81/2008 of the Constitutional Court and amended by the law of May 8, 2013, is replaced by the following: 'article
39/85. § 1. When the alien been subject to a measure of expulsion or refoulement whose execution becomes imminent, especially when it is subsequently maintained in a specific place under articles 74/8 and 74/9 or is put at the disposal of the Government, the alien may, by way of interim measures within the meaning of article 39/84, requesting that the Commission review as soon as possible a request previously introduced regular suspension provided that it has been placed on the role and that the Commission is not yet ruled against him. This application for interim measures must be submitted within the period referred to in article 39/57, § 1, paragraph 3.
If the request appears obviously late, the speaker of the House before it or the judge to the foreigners litigation designated indicated in its order and shall convene the parties to appear within 24 hours of the receipt of the application without delay.
President of the room or the foreigners litigation judge shall review attentive and rigorous of all the evidence brought to its attention, in particular those who are likely to indicate that there are grounds to believe that the operation of the contested decision would expose the applicant to the risk of being subjected to the violation of the fundamental rights of man to which no derogation is possible under article 15 , paragraph 2, of the European Convention for the safeguarding of the rights of man and fundamental freedoms.
Under penalty of inadmissibility of the application introduced by way of interim measures, to the examination of the application for suspension of the execution of another act voidable under article 39/2, the measure of expulsion or refoulement, referred to in paragraph 1, shall, at the same time be subject, as appropriate, an application for interim measures or a request for suspension of extreme urgency of its execution.
Notwithstanding paragraphs which precede, the speaker of the House before it or the judge in litigation of foreigners designated by him is pronounced in priority on the admissibility of the application, if necessary without convening the parties, when the following conditions are met: 1 ° there is a second measure of expulsion or refoulement, and (2) the request is manifestly late, and 3 ° the request is made less than 12 hours before the expected execution time measurement , and 4 ° the applicant and, where appropriate, counsel are informed at least 48 hours before the time scheduled for the implementation of the measure.
If he declares the claim inadmissible, the judgment terminates the procedure. If he declares the application admissible, the proceedings are continued as provided for in §§ 2 to 4.
§ 2. The request for provisional measures and the request for suspension are reviewed jointly and processed within 48 hours following receipt by the Commission of the request for provisional measures. That period is however be extended to five days following the day of receipt by the Commission of the request for provisional measures, when the remoteness or the effective discharge from abroad is expected at a later date to the period of eight days.
If the speaker of the House before it or the seized foreigners litigation judge pronounces within the time limit, it shall notify the first president or the president. It shall ensure that a decision is made, as appropriate, no later than two hours after receipt of the request, either,

as soon as possible. It can in both cases including evoke the case and decide himself.

§ 3. Without prejudice to the § 1 may not, upon receipt of the application for interim measures, be made to the enforcement of the expulsion or refoulement measure until such time as the Council ruled on the request submitted. If the suspension has not been granted, the enforcement of the measure is again possible.
§ 4. The King sets, by Decree deliberated in the Council of Ministers, the content of the request referred to in this article, the manner in which it must be lodged and the procedure. "."
CHAPTER 2. -Provisions transitional art.
8 § 1. Articles 4 and 5 (2), shall apply to the requests for suspension of extreme urgency for the execution of any measure of expulsion or refoulement, notified after the date of entry into force of this Act, and the execution of any decision taken subsequently to such a measure, against the same foreigner.
§ 2. Article 7 is applicable to the extreme emergency interim measures requests by any foreign national who is the subject of a decision, by which the execution of the expulsion or refoulement becomes imminent, which is notified after the date of entry into force of this Act.
TITLE III. -Case law Chapter 1 unit. -Amendments to the Act of 15 December 1980 on access to the territory, residence, establishment and removal of aliens arts 9. article 39/6, § 3, paragraph 4, of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners, inserted by the law of 15 September 2006 is replaced by the following: ' it shall immediately send to the first president and the president Affairs which, according to him, must be treated by the combined Chambers in order to ensure the unity of jurisprudence or to the development of law and those for which a part " request the referral to room together in the interests of unity of jurisprudence. "."
S. 10. the title of section III of Chapter 2 of title Ierbis of the Act is replaced by the following: "Section III. -The General Assembly and met rooms".
S. 11. article 39/11 of the same Act, inserted by the law of 15 September 2006, is replaced by the following: 'article 39/11. The General Assembly of the Council is composed of the members of the Council referred to in article 39/4, paragraph 1. She sits even number which cannot be less than ten, including one who chairs.
It is composed in equal numbers of members of the Council having justified by their degree that they have passed the exam of doctor, degree or master's degree in law in the French language on the one hand and in the Dutch language on the other.
The General Assembly is chaired by the first president or, failing that, by the president. Failing this, the Presidency is exercised by the president of Chamber with the most seniority, or, where appropriate, by the judge at present foreigners litigation with the most seniority.
With the exception of the hearings referred to in article 39/12, § 1, paragraph 4, the Administrator attended general meetings whenever subjects relating to its powers are set out in the agenda. With regard to these topics, he has a consultative voice.
In the event of parity of votes, the voice of one who presides the General Assembly is preponderant. "."
S. 12. article 39/12 of the same Act, inserted by the law of 15 September 2006, is replaced by the following: 'article 39/12. § 1. When the first President or President, after obtaining the opinion of the judge in litigation foreigners responsible for the report for the hearing, considers it necessary, for unity of jurisprudence or the development of law, that a case is treated by the combined Chambers, he orders the reference to them.
If the president and the first president feel no need to convene the met Chambers, the president of Chamber informs room who know the relevant litigation. If one of these rooms, after deliberation, requesting that the met Chambers, the first president is obliged to respond or refer the matter to the General Assembly.
The first president or the president is also required to give a request for reference before the boards met to the jurisprudence's unity when it is formulated by the two parties.
If it considers that the significance of the case so requires, the first president or the president may, by way of derogation from the foregoing, decide to refer the matter to the General Assembly.
§ 2. The met Chambers are composed of six members of the Council whose three justified by their degree that they have passed the exam by doctor, degree or master's degree in law in the French language and three in the language Dutch.
The first president and the president designate each for their linguistic role the Board members which constitute the met Chambers. For the procedures referred to in article 39/2, § 1, the members that make up the together rooms are chosen from those who usually deal with this litigation. For the procedures referred to in article 39/2, § 2, members that make up the together rooms are chosen among those who usually deal with this litigation.
Met Chambers are presided over by the first president or president if case record of a litigation that it deals usually. Otherwise, they are chaired by the president of Chamber with the most seniority which deals with this litigation usually or, failing that, by the Member of this Council with the most seniority which deals with this litigation usually.
In the event of parity of votes, the voice of one who presides the met rooms is preponderant. "."
CHAPTER 2.
-Amendments to the laws on the Council of State, coordinated on 12 January 1973 s. 13. article 20, § 2, paragraph 4, laws on the Council of State, coordinated on 12 January 1973, restored by Act of 15 September 2006, is completed by the words "within the administrative jurisdiction referred to in article 14, § 2, or of the Council of State".
S. 14A article 92, § 2, same laws, inserted by the law of 15 September 2006, the following changes are made: 1 ° in the paragraph 1, the words "or consideration of this appeal" shall be inserted between the words "within the meaning of article 20" and the words ", believes that";
2 ° in the 1st paragraph, the last sentence is hereby repealed;
3 ° paragraph is supplemented by the following paragraphs: "If the appeal in cassation within the meaning of article 20 is declared eligible, the first president or president, if he is responsible for the section of the administrative litigation, orders the reference in rooms together section of the administrative litigation each time that the contested decision has been made by administrative and General Assembly met rooms jurisdiction. He does the same when, after taking the opinion of the Auditor, responsible of the report, the auditor general considers that, to ensure the unity of jurisprudence, the case should be treated by the combined Chambers.
If it considers that the significance of the case so requires, the first president or the president if he is responsible for the section of the administrative litigation may decide, by way of derogation from the foregoing, refer the matter to the General Assembly of the administrative litigation section. He does the same when, after taking the opinion of the Auditor, responsible of the report, the auditor general considers that, to ensure the unity of jurisprudence, the case must be dealt with by the General Assembly. "."
CHAPTER 3. -Disposition transitional art.
15. articles 13 and 14 shall apply to appeals to the Supreme administrative court after the date of entry into force of this Act.
TITLE IV. -The procedure of appeal to the Council of litigation of foreigners against decisions of the Commissioner-general for refugees and stateless persons referred to in article 57/6/1, paragraph 1, and article 6-57-2 of the Act of 15 December 1980 Chapter 1. -Amendments to the Act of 15 December 1980 on access to the territory, residence, establishment and removal of aliens arts 16. in article 39/2, § 1, of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners, inserted by Act 15 September 2006 and replaced by the law of May 8, 2013, the following changes are made: 1 ° paragraph 2 is supplemented by a 3 ° as follows: "3 ° without prejudice of 1 ° or 2 ° annul the contested decision of the Commissioner-general for refugees and stateless persons of failure to take into consideration the asylum application under article 57/6/1, paragraph 1, or article 57/6/2, paragraph 1, on the ground that there are serious indications that the applicant is entitled to the recognition of refugee status within the meaning of article 48/3 or the granting of subsidiary protection within the meaning of article 48/4. ";"
2 ° in paragraph 3, 2 ° and 3 ° are repealed.
S. 17. article 39/57, § 1, paragraph 2, of the Act, as last amended by the law of May 8, 2013, is replaced by the following: "the application is lodged within 15 days of the notification of the decision against which it is directed: 1 ° when the action is brought by a foreign national who is, at the time of notification of the decision" in a specific place under sections 74/8 74/9, and that is put at the disposal of the Government;
2 ° when the appeal is directed against a decision of not taken into account under article 57/6/1, paragraph 1;
3 ° when the appeal is directed against a decision of not taking

account referred to in article 57/6/2, paragraph 1. This period is reduced to ten days when the action is brought by a foreign national who is, at the time of notification of the decision, in a specific place referred to in section 74/8 and 74/9 or which is put at the disposal of the Government, against a first decision not taken into account. This period is reduced to five days from a second decision not taken into account. "."
S. 18. article 39/70 of the Act, inserted by the law of 15 September 2006, is supplemented by a paragraph worded as follows: "paragraph 1 does not apply when a return decision does not direct or indirect refoulement as determined in accordance with article 57/6/2 and: 1 ° the person concerned has introduced a first subsequent asylum application within forty-eight hours before his expulsion in order to delay or prevent the execution of a decision that would result in his removal of" territory;
or 2 ° the applicant has introduced a new subsequent asylum application after a final decision on a first subsequent application. "."
S. 19. in the same Act inserted an article 39/72/1 as follows: "article 72-39-1. By way of derogation from articles 39/71 and 39/72, when the action is brought against a decision of not taken into account under article 57/6/1, paragraph 1 or article 57/6/2, paragraph 1, the Registrar shall send a copy immediately and no later than the business day that is not a Saturday or a Sunday or a holiday following the enrolment to the Commissioner-general for refugees and stateless persons. In this case, the Registrar indicates that the folder, possibly accompanied by a note of observations, must be filed at the registry within three working days from the notification. "."
S. 20A article 39/76, of the same Act, inserted by the Act of September 15, 2006 and replaced by the law of May 8, 2013, the following changes are made: 1 ° in the § 1, paragraph 1, the first sentence is completed by the following: ", unless there is a decision not taken into account referred to in article 57/6/1" ", paragraph 1, or article 57/6/2, paragraph 1".
2 ° § 3, is supplemented by a paragraph worded as follows: "president of Chamber seized or the judge in litigation of foreigners designated by him shall take a decision within 30 days following receipt of the appeal against the decision of the Commissioner-general for refugees and stateless persons not taking consideration of the asylum application referred to in article 57/6/1" , paragraph 1, or article 57/6/2, paragraph 1, or if the query has been regularized pursuant to article 39/69, § 1st, after receipt of the regulation, or if a law's role must be acquitted from the enrolment. "."
S. 21. in the Ierbis title, Chapter 5, section II, subsection 3 of the same Act, inserted an article 39/77/1 as follows: "article 77-39-1. § 1.
When the appeals against the decision of not taken into account in article 57/6/2, paragraph 1, is introduced by a foreign national who is located in a specific place referred to in articles 74/8 and 74/9 or which is put at the disposal of the Government, the Chief Clerk or clerk designated by him shall send a copy, immediately and no later than the business day that is not a Saturday , Sunday, or a holiday, the receipt of the appeal which may be registered in the role, the Commissioner-general to the refugees and stateless persons. The clerk asked him to file in the registry, within the time limit set by it and which may not exceed two working days from the notification.
Immediately and at the latest within the working day that is a Saturday or a Sunday, or a public holiday, following receipt of the appeal which can be registered to the role, the president of Chamber or judge to the foreigners litigation designated fixed the case and summoned the parties to appear before it within three working days at the latest following the date of receipt of the binding.
President of Chamber or the judge designated may summon possibly, by order, the parties determined instead referred to in articles 74/8 and 74/9 where abroad or the place where it is made available Government, the day and time to be fixed, even on Sunday or a holiday.
The convocation fixes the day from which the record may be consulted at the registry by the parties and their counsel.
If the defendant has not transmitted the record time previously, it is delivered from the bench at the president, taking the necessary measures to enable the other parties to the proceeding to consult.
§ 2. The president of the Chamber or the judge to foreigners litigation designated is pronounced under article 39/76, §§ 1 and 2.
President of Chamber or judge seized foreigners litigation to decide within two working days following the closing of the discussion. It may order the immediate execution of the decision.
§ 3. In the case of an alien who is placed, during the procedure, in a specific place under articles 74/8 and 74/9 or that is put at the disposal of the Government, the use during is review of right following this accelerated procedure. Unless the use is already fixed, the procedure takes place in this case in accordance with this article, regardless of its State, being understood that the time limit in the § 1, paragraph 2, amounts to not less than three working days. "."
S. 22A article 39/81 of the Act, inserted by the law of 15 September 2006 and amended by the law of May 8, 2013, the following changes are made: 1 ° in paragraph 1, in the second indent, the numbers "1-6-57, 6-57-2," are repealed;
2 ° in paragraph 3, the words "and article 39/73 does not apply" shall be replaced by the words "and if neither article 39/73 or the special rules of procedure referred to in article 39/68, paragraph 2, apply".
S. 23. in article 57/6/2, paragraph 1, of the same Act, inserted by the law of May 8, 2013, the second sentence is supplemented by the words 'and it is in a reasoned manner that a return decision will not result in a direct or indirect discharge'.
CHAPTER 2. -Provisions transitional art. 24. the present title is applicable to appeals against decisions not taken into consideration, referred to in article 57/6/1, paragraph 1, or article 57/6/2, paragraph 1, of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners, who have been notified from the date of entry into force of this Act.
S. 25. as regards the decisions not taken into consideration, referred to in articles 1-6-57, paragraph 1, and 57/6/2, paragraph 1, of the above-mentioned Act of 15 December 1980, which were notified before the date of the entry into force of this Act and for which the time limit for lodging an action for cancellation of 30 days is still pending, the applicant may choose to apply, within that period, in conformity with article 39/2, § 1, paragraph 1, of the Act of 15 December 1980. If it still brought an action for annulment, it shall be carried out in accordance with article 26 of this Act.
S. 26 § 1. With regard to the action for annulment brought against a decision of not taken into consideration referred to in articles 1-6-57, paragraph 1, and 6-57-2, paragraph 1, of the Act of 15 December 1980 enlisted, prior to the entry into force of this Act, and which were not yet the subject of a final judgment at this time , the registry of foreigners litigation Council informed the applicant, by registered mail, it can introduce a new query for the treatment thereof in accordance with article 39/2, § 1, paragraphs 1 and 2, of the Act of 15 December 1980.
§ 2. The applicant part features of a period of 30 days from the notification of the consignment referred to the § 1, to file a new motion in the sense referred to the § 1.
§ 3. When the applicant fails to file a new request within the period specified in § 2, the Council shall act on the basis of the initially introduced query, which is assimilated by full right to the remedy referred to in article 39/2, § 1, paragraph 1, of the Act of 15 December 1980.
When the applicant filed a new request within the time limit referred to in paragraph 2, the requesting party is considered as is being discontinued originally introduced query and the Council shall act only on the basis of the new query.
In the cases referred to in paragraphs 1 and 2, the proceedings are continued in accordance with the provisions of article 39/2, § 1, paragraph 1, of the Act of 15 December 1980 and articles 19 and 20, 2 °, of the Act, without prejudice to article 21 of this Act.
S. 27. as regards annulment, introduced remedies against a decision of not taken into consideration referred to in articles 1-6-57, paragraph 1, and 57/6/2, paragraph 1, of the Act of 15 December 1980, prior to the entry into force of this Act, but who were not yet enrolled at that time, the Council of litigation of foreigners address registry where applicable, the e-mail referred to in article 39/69, § 1, paragraph 5, of the Act of 15 December 1980, simultaneously to the consignment referred to in article 26 § 1 of this Act.
The procedure is continued pursuant to section 26 of this Act, provided that the request is adjusted in accordance with article 39/69, § 1, paragraph 6, of the Act of 15 December 1980.
S. 28. unless agreed by abroad, no measures of removal

the territory cannot be enforced in forced manner, in the proceedings referred to in articles 25, 26 and 27 of this Act, nor during the consideration of the intended use, by the Council of litigation of foreigners, without prejudice to article 18 of this Act.
TITLE v - Provisions various arts.
29. in article 30 § 1, paragraph 1, laws on the Council of State, coordinated on 12 January 1973, replaced by the law of 4 August 1996 and amended by the laws of the 6 and January 20, 2014, the word "11A", is inserted between the number "11" and the number "12".
S.
30. in article 83, paragraph 2, same laws, inserted by the law of 31 December 1983, the word "thorough" is replaced by the word "sufficient".
S. 31. in article 39 of the law of 20 January 2014 reforming the jurisdiction, procedure and the Organization of the Council of State, "to any appeal or application introduced from this date" shall be replaced by the words "any request for suspension or provisional measures introduced under the benefit of the extreme urgency of this date ", and which is not an accessory of an action for annulment brought before that date, as well as any application, fix and use as referred to in articles 11, 12, 13, 14 and 16, 1 ° to 8 °, laws on the Council of State, coordinated on 12 January 1973, introduced after this date, and requests that are incidental and concomitant or subsequent".
S. 32. article 29 comes into force July 1, 2014.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given to Brussels, April 10, 2014.
PHILIPPE by the King: the Minister of the Interior, Ms. J. MILQUET. the Minister of Justice, Ms. A. TURTELBOOM. the Secretary of State to asylum and Migration, Ms. M. BLOCK sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) 2013-2014 Session House of representatives Documents. -53-3445 No. 1: Bill.
No. 2: amendments.
No. 3: report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary meeting and forwarded to the Senate.
Full record: 26 and 27 March 2014.
Senate Documents. -No.1 5-2816: draft transmitted by the House of representatives.
No. 2: amendments.
No. 3: report.
No. 4: Text adopted in plenary meeting and submitted to Royal assent.
Annals of the Senate: April 3, 2014.