Act Amending The Act Of 15 December 1980 On Access To The Territory, Residence, Establishment And Expulsion Of Foreigners

Original Language Title: Loi modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers

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belgiquelex.be - Carrefour Bank of Legislation

19 MARCH 2014. - An Act to amend the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Directive 2011/51/EU of the European Parliament and the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection.
This Act also partially transposes the following directives:
- Council Directive 2003/109/EC of 25 November 2003 on the status of long-term resident third country nationals;
- Council Directive 2009/50/EC of 25 May 2009 establishing the conditions for the entry and residence of third-country nationals to the trusts of highly qualified employment;
- Council Directive 2001/51/EC of 28 June 2001 to supplement the provisions of Article 26 of the Schengen Implementation Convention of 14 June 1985;
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and members of their families to circulate and stay freely in the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/65/EEC, 90/364
- Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.
CHAPTER 2. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 3. Article 1er of the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, last amended by the Act of 15 May 2012, is supplemented by the 16th and 17th drafted as follows:
“16° international protection: refugee status and subsidiary protection status;
17° Schengen information system: the Schengen information system as created within the framework of the Schengen acquis integrated and developed within the framework of the European Union, which is governed by 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). "
Art. 4. In article 3, paragraph 1er, of the same law, replaced by the law of 15 July 1996 and amended by the law of 19 January 2012, the 5th is replaced by the following:
"5° if reported for non-admission or residence ban in the Schengen information system; "
Art. 5. In section 8bis of the same law, inserted by the law of 1er September 2004 and amended by the laws of 6 May 2009 and 19 January 2012, § 4 is replaced by the following:
“§4. During the recognition procedure referred to in § 1er, the Minister or his delegate may, without prejudice to the provisions of Title IIIquater and unless other sufficient but less coercive measures may be applied effectively, detain the foreigner who is reported for non-admission or residence ban in the Schengen information system, for one of the reasons referred to in § 1er, 1°, without the duration of detention to exceed one month. "
Art. 6. In Article 10, § 1erParagraph 1er, of the same law, replaced by the law of 8 July 2011, the 2° is replaced by the following:
"2° the foreigner who fulfils the conditions set out in the Belgian Nationality Code to recover Belgian nationality, without having to have his principal residence in Belgium for at least 12 months and without having to make a declaration of recovery of Belgian nationality; "
Art. 7. In Article 10bis, § 3, paragraph 2, of the Act, replaced by the Act of 8 July 2011, the words "long-term resident residence permit - EC" are replaced by the words "long-term resident residence permit - EU".
Art. 8. In Article 12bis, § 4, paragraph 1er, of the same law, inserted by the law of 6 August 1993 and replaced by the law of 8 July 2011, the words "and 4°" are inserted each time between the words "§ 1er, paragraph 2, 3° and the words ", when the foreigner" and between the words "§ 1er, paragraph 2, 3° and the words ", it communicates it".
Art. 9. In section 15bis of the Act, inserted by the Act of 25 April 2007 and amended by the Act of 15 May 2012, the following amendments are made:
1° in § 1erParagraph 1erthe words "and section 14, paragraph 2," are repealed;
2° in § 1erParagraphs 2, 3 and 4 are replaced by a paragraph, which reads as follows:
"Paragraph 1er does not apply to a foreigner who:
1° is allowed to stay in the Kingdom for study or vocational training;
2° is authorized to stay in the Kingdom under temporary protection or has applied for a residence permit in that capacity and is awaiting a decision on the status;
3° is authorized to stay in the Kingdom under a form of protection other than international protection or has requested a residence permit in that capacity and awaits a decision on status;
4° requested international protection and whose application has not yet been the subject of a final decision;
5th stay in the Kingdom exclusively for temporary reasons;
6° has a legal status governed by the provisions of the Vienna Convention of 18 April 1961 on Diplomatic Relations, the Vienna Convention of 24 April 1963 on Consular Relations, the New York Convention of 8 December 1969 on Special Missions or the Vienna Convention of 14 March 1975 on the representation of States in their relations with international organizations of a universal character; »
3° § 2 is replaced by the following:
§ 2. For the calculation of the five-year stay referred to in § 1erParagraph 1eris not taken into account the period(s) referred to in § 1erParagraph 2, 5 and 6.
The period(s) referred to in § 1er, paragraph 2, 1°, shall be taken into account for half.
With respect to the foreigner to whom international protection has been granted, half of the period between the date of the introduction of the application for international protection on the basis of which this international protection has been granted and the date of the issuance of the residence permit, or the entire period of that period, if it exceeds eighteen months, is taken into consideration.
Periods referred to in paragraph 3 and periods of stay as a beneficiary of international protection shall not be taken into consideration if international protection has been withdrawn in accordance with Article 57/6, paragraph 1er, 6°, or if it has been withdrawn because the foreigner has presented facts in an altered way or has concealed them, has made false statements or has used false or falsified documents that have been decisive in the granting of international protection.
With respect to the foreigner who has been authorized to stay under Article 61/27, the periods of stay in the various Member States of the European Union may be accumulated for the calculation of the required five-year period, provided that five years of legal and uninterrupted stay in the territory of the Union as holder of a European blue card, two years immediately preceding the introduction of the application in the Kingdom. "
Art. 10. Section 16 of the Act, replaced by the Act of 25 April 2007, is replaced by the following:
“Art. 16. § 1er. The application for an establishment authorization is addressed to the municipal administration of the place of residence. This municipal administration shall issue an acknowledgement of receipt and shall transmit it to the Minister or his delegate, provided that the foreigner meets the requirement of section 14, paragraph 2, and, where his or her identity is not established, shall produce a copy of a valid passport.
The King sets out the model of the application for settlement authorization.
§ 2. The application for the acquisition of long-term resident status is addressed to the municipal administration of the place of residence. This municipal administration delivers an acknowledgement of receipt and transmits it to the Minister or to his or her delegate, provided that the foreigner is in possession of a valid residence or institution and, where his or her identity is not established, produces a copy of a valid passport. This request must be accompanied by evidence of the meeting of the conditions set out in Article 15bis, § 3.
The King sets out the model of the application for the acquisition of long-term resident status, the rules relating to the processing of this application and the consequences of the absence of a decision upon the expiry of the time limit.
§ 3. An unestablished foreigner, who meets the requirement set out in section 14, paragraph 2, may, at his or her choice, apply for an establishment authorization or for the acquisition of a long-term resident status. The application for the acquisition of long-term resident status is a request for an establishment authorization.
The established foreign national may at any time request the acquisition of long-term resident status. "
Art. 11. In the same law, an article 16bis is inserted as follows:
"Art. 16bis. Where the granting of long-term resident status is denied for public or national security reasons, the Minister or his or her delegate shall take into consideration the gravity or nature of the offence against public order or national security, or the danger that the person concerned represents, while also taking into account the length of the stay and the existence of links with the Kingdom. Reasons cannot be invoked on economic fis. "
Art. 12. In section 17 of the Act, as amended by the Acts of 25 April 2007 and 15 May 2012, the following amendments are made:
1° in § 2, paragraphs 1er and 3, the words "long-term resident residence permit - EC" are replaced each time by the words "long-term resident residence permit - EU";
2° in § 2, paragraph 1er, the words "When the foreigner authorized to settle in the Kingdom is seen, simultaneously or afterward" are replaced by the words "When the foreigner sees himself";
3° in § 2, paragraph 3, the words "replaces the title of establishment referred to in § 1er and » are repealed;
4° in § 2, paragraph 4 is repealed;
5° the article is supplemented by §§ 3 to 6, written as follows:
Ҥ3. When the Minister or his delegate grants the status of a long-term resident abroad referred to in Article 61/7, he shall notify the Member State of the European Union that has already issued a long-term resident residence permit to that foreigner on the basis of the aforementioned Directive 2003/109/EC of the Council of the European Union.
§ 4. When the long-term resident's status is granted to the holder of a European blue card, he is granted a long-term resident's residence permit - EU with the special mention "old holder of a European blue card".
§ 5. When the long-term resident status is granted to a foreigner who enjoys international protection in the Kingdom or another Member State of the European Union, he or she is granted a long-term resident residence permit - EU with the special mention that international protection was granted by Belgium or by another Member State of the European Union and the date on which such protection was granted.
The King shall determine the other terms and conditions relating to this special mention.
§ 6. The Minister or his delegate shall respond to requests made by other Member States in accordance with the above-mentioned Directive 2003/109/EC of the Council of the European Union to determine whether a foreigner still enjoys international protection in the Kingdom in the month of receipt of the application.
To this end, the Minister or his or her delegate may receive the advice of the Commissioner General or one of his or her deputy. "
Art. 13. In section 18 of the Act, replaced by the Act of April 25, 2007, the following amendments are made:
1° in § 1er, paragraph 2, the words "long-term resident residence permit - EC" are replaced by the words "long-term resident residence permit - EU";
2° the article is supplemented by a § 3, written as follows:
§ 3. The Minister or his delegate may decide that a foreigner who has been granted long-term resident status as a beneficiary of international protection shall lose that status when international protection has been withdrawn in accordance with section 57/6, paragraph 1er, 6°, or when it was withdrawn because the foreigner has presented facts in an altered way or has concealed them, has made false statements or has used false or falsified documents that have been decisive in the granting of international protection. "
Art. 14. In section 19 of the Act, replaced by the Act of 25 April 2007 and amended by the Act of 15 May 2012, the following amendments are made:
1° in § 3, the words "long-term resident residence permit - EC" are replaced by the words "long-term resident residence permit - EU";
2° § 4 is replaced by the following:
Ҥ4. Even if the validity of the residence permit issued in Belgium is expired, the Minister or his delegate is required to take charge of:
1° the foreigner who is a holder of a long-term residence permit - Belgian EU and who is the subject of a decision of removal by the competent authority of another Member State of the European Union, following a refusal of extension or following a withdrawal of the residence permit issued by that other Member State on the basis of the Directive 2003/109/EC referred to above of the Council of the European Union, for reasons of national ordererParagraph 1er4° to 7°, subject to the application of § 1er2;
2° the foreigner who enjoys international protection in the Kingdom, who has obtained the status of a long-term resident in another Member State of the European Union, and who is the subject of a decision of removal by the competent authority of that Member State, because of a real and serious threat to public order or national security, as well as members of his family referred to in Article 10, § 1erParagraph 1er4° to 7°;
3° the foreigner authorized to stay under Article 61/27 which is the subject of a decision of removal by the competent authority of another Member State of the European Union following the refusal of his application for a stay on the basis of the provisions of Council Directive 2009/50/EC of 25 May 2009 establishing the conditions for the entry and residence of third country nationals to the fis of a highly qualified employment, as well as § 1erParagraph 1er4° to 6°. ".
Art. 15. In section 20 of the Act, last amended by the Act of 25 April 2007, the following amendments are made:
1° in paragraph 3, the first sentence is supplemented by the words "and cannot be justified by economic reasons. »;
2° the article is supplemented by three paragraphs, as follows:
"When taking an expulsion order, it is taken into account the length of stay in the Kingdom, the age of the person concerned, the consequences for the person and members of his family, as well as the existence or absence of links with the country of origin.
When the King makes an expulsion order in respect of a long-term resident whose long-term residence permit - EU contains the special mention referred to in Article 17, § 5, paragraph 1er, relating to international protection, it is requested to the competent authority of the Member State indicated in the mention to confirm whether the interested party still enjoys international protection. If the long-term resident still enjoys international protection, he is remote to that Member State.
By derogation from paragraph 5 and subject to international obligations binding on Belgium, the long-term resident may be removed to another country other than the country that granted him international protection if there are substantial grounds for considering that he constitutes a security threat or if, having been the subject of a final conviction for a particularly serious crime, he constitutes a threat. "
Art. 16. In section 21 of the Act, replaced by the Act of 26 May 2005 and amended by the Act of 6 May 2009, the following amendments are made:
1° § 1er, 2°, is supplemented by the words "by the Belgian authorities";
2° in § 3, the 2° is replaced by the following:
"2° the foreigner who meets the requirements of the Belgian Nationality Code to acquire Belgian nationality by declaration of nationality or to recover it; "
Art. 17. In section 40 bis of the Act, inserted by the Act of 25 April 2007 and replaced by the Act of 8 July 2011, the following amendments are made:
1° § 2, paragraph 1er, is completed by the 5th written as follows:
"5° the father or mother of a citizen of the European Union minor of age referred to in Article 40, § 4, paragraph 1er, 2° as long as the latter is in charge and he actually has custody of it. » :
2° § 4 is supplemented by a paragraph written as follows:
"The family member referred to in § 2, paragraph 1er, 5°, must prove that it has sufficient resources to support its own needs and those of its child, a citizen of the Union, so as not to become a charge for the social aid system of the Kingdom and a health insurance covering all the risks in Belgium. As part of the assessment of resources, it is taken into account, inter alia, their nature and their regularity. "
Art. 18. Section 41 of the Act, as amended by the Act of 25 April 2007, is replaced by the following:
"Art. 41. § 1er. The right of entry shall be recognized to the citizen of the Union on the presentation of an identity card or passport, which is valid, or if he or she can show or otherwise prove his or her status as a beneficiary of the right to freedom of movement or residence.
Where the citizen of the Union does not have the required documents, the Minister or his delegate shall grant him all reasonable means to obtain or obtain, within a reasonable period of time, the required documents or to confirm or prove by other means his or her status as a beneficiary of the right to circulate and to stay freely before proceeding with his or her return.
§ 2. The right of entry is recognized to the members of the family of a citizen of the Union referred to in Article 40 bis, § 2, who are not citizens of the Union on presentation of a valid passport, if any, shall have a valid entry visa, in accordance with Regulation (EC) No 539/2001 of the Council of 15 March 2001 establishing the list of third countries whose obligations are exempted from the nationals
The King determines the procedure for issuing the visa.
The possession of a residence card for a member of the family of a citizen of the Union or a permanent residence card for a member of the family of a citizen of the Union, issued on the basis of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and members of their families to circulate and to stay freely in the territory of the Member States, exempts the member from the entryer.
Where a member of the family of a citizen of the Union does not have the required documents, the Minister or his or her delegate shall provide him with all reasonable means to obtain or obtain, within a reasonable period of time, the required documents or to confirm or prove by other means his or her status as a beneficiary of the right to freedom of movement and residence before proceeding with his or her return.
§ 3. The holder of an identity card or passport issued by the Belgian authorities is admitted without formality in the territory of the Kingdom even if his nationality is contested or if this document is expired.
§ 4. Where a citizen of the Union is not in possession of an identity card or a national passport, which is valid, or where a family member of a citizen of the Union, who is not a citizen of the Union, is not in possession of a national passport that is valid, if any, subject to an entry visa in accordance with the regulations (EC) No. 539/2001 delegated official, This fine is collected in accordance with section 42octies. "
Art. 19. Article 42bis, § 1er, of the same law, inserted by the law of 25 April 2007, is supplemented by two paragraphs written as follows:
"For the purposes of paragraph 1er, in order to determine whether the citizen of the Union constitutes an unreasonable burden for the social assistance system of the Kingdom, it is taken into account the temporary or not nature of his difficulties, the duration of his stay in the Kingdom, his personal situation and the amount of assistance granted to him.
When deciding to end the stay, the Minister or his or her delegate takes into account the length of the stay of the interested person in the Kingdom, his or her age, state of health, family and economic situation, social and cultural integration in the Kingdom and the intensity of his or her relationship with his or her country of origin. "
Art. 20. In Article 42ter, § 1er, of the same Act, inserted by the Act of 25 April 2007, replaced by the Act of 8 July 2011 and amended by the Act of 28 June 2013, paragraph 2 is reinstated in the following wording:
"For the purposes of paragraph 1er5°, in order to determine whether members of the family of a citizen of the Union constitute an unreasonable charge for the social assistance system of the Kingdom, it is taken into account the temporary or not character of their difficulties, the duration of their stay in the Kingdom, their personal situation and the amount of assistance granted to them. "
Art. 21. In Article 42quater, § 1er, of the same Act, inserted by the Act of 25 April 2007, replaced by the Act of 8 July 2011 and amended by the Act of 28 June 2013, paragraph 2 is reinstated in the following wording:
"For the purposes of paragraph 1er5°, in order to determine whether the family members of a citizen of the Union constitute an unreasonable charge for the social assistance system of the Kingdom, it is taken into account the temporary or not nature of their difficulties, the duration of his stay in the Kingdom, their personal situation and the amount of assistance granted to them. "
Art. 22. Article 42quinquies, § 1erin the same Act, inserted by the Act of 25 April 2007, the following amendments are made:
1° in paragraph 1erthe words "on the basis of the provisions of this chapter" are repealed;
2° paragraph 1er is supplemented by the words "in accordance with the legal instruments of the European Union. "
Art. 23. Section 43 of the Act, as amended by the Act of 25 April 2007, is supplemented by a paragraph written as follows:
"When the Minister or his delegate plans to end the stay of a citizen of the Union or of a member of his family for reasons of public order, national security or public health, he takes into account the length of his stay in the Kingdom, his age, his state of health, his family and economic situation, his social and cultural integration and the intensity of his ties with his country of origin. "
Art. 24. In title II of the same law, a chapter Ibis is inserted after section 47 entitled "Other members of the family of a citizen of the Union. "
Art. 25. In chapter Ibis inserted by article 24, an article 47/1 is inserted as follows:
"Art. 47/1. Are considered other members of the family of a citizen of the Union:
1° the partner with which the citizen of the Union has a duly attested lasting relationship, and which is not covered by Article 40bis, § 2, 2°;
2° the members of the family, not referred to in Article 40 bis, § 2, which in the country of origin are dependent or part of the household of the citizen of the Union;
3° the members of the family, not referred to in Article 40 bis, § 2, whose citizens of the Union must, and personally, take care of because of serious health problems. "
Art. 26. In the same chapter Ibis, an article 47/2 is inserted as follows:
"Art. 47/2. Without prejudice to the provisions of this chapter, the provisions of Chapter I relating to members of the family of a citizen of the Union referred to in Article 40 bis shall apply to other members of the family referred to in Article 47/1. "
Art. 27. In the same chapter Ibis an article 47/3 is inserted as follows:
"Art. 47/3. § 1er. The other members of the family referred to in Article 47/1, 1°, must demonstrate the existence of a relationship with the citizen of the Union that they want to accompany or join as well as its lasting character.
The lasting character of the relationship can be proved by any appropriate means.
When examining the sustainable nature of the relationship, the Minister or his delegate takes into account, inter alia, the intensity, seniority and stability of the relationships between partners.
§ 2. The other members of the family referred to in section 47/1, 2°, must demonstrate that they are responsible for the citizens of the Union that they want to accompany or join or that they are part of their household.
Documents certifying that the other family member is dependent or part of the Union's household must be issued by the competent authorities of the country of origin or origin. If not, being dependant or part of the Union's household may be proved by any appropriate means.
§ 3. The other members of the family referred to in Article 47/1, 3°, must demonstrate that, in view of serious health reasons, the citizen of the Union who they want to accompany or join must absolutely and personally take care of them. ".
Art. 28. In section 61/7 of the Act, inserted by the Act of 25 April 2007, the following amendments are made:
1° in § 1erthe words "long-term resident residence permit - EC" are replaced by the words "long-term resident residence permit - EU";
2° in § 5, the words "long-term resident residence permit" are replaced by the words "long-term resident residence permit - EU";
3° the article is supplemented by a § 7, written as follows:
Ҥ 7. When the residence permit is denied for public or national security reasons, the Minister or his or her delegate shall take into account the gravity or nature of the offence of the person concerned, or the member of his or her family has committed against public order or national security, or the danger that the person in question represents. Reasons cannot be invoked on economic fis. "
Art. 29. In section 61/8 of the same Act, inserted by the Act of 25 April 2007 and amended by the Act of 6 May 2009, the words "long-term resident residence permit" are replaced by the words "long-term resident residence permit - EU".
Art. 30. In section 61/9 of the Act, inserted by the Act of 25 April 2007, the following amendments are made:
1° the words "long-term resident residence permit" are replaced by the words "long-term resident residence permit - EU."
2° the words "and as long as the foreigner does not enjoy international protection in another Member State of the European Union" are inserted between the words "national security" and the words "the minister can match his removal".
Art. 31. In article 74/4bis, § 1erParagraph 1er, of the same law, inserted by the law of 8 March 1995 and amended by the law of 15 July 1996 and by the royal decree of 20 July 2000, the words "3,750 EUR" are replaced by the words "5,000 EUR".
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 March 2014.
PHILIPPE
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
The Secretary of State for Asylum and Migration,
Ms. M. DE BLOCK
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
House of Representatives (www.lachambre.be):
Documents: 53-3239.
Full report: 12-13 February 2014.
Senate (www.senate.be):
Documents: 5-2490.