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19 JANVIER 2012. - An Act to amend the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens (1)
ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
. - General provisions
. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures applicable in Member States to the return of third country nationals to irregular residence and articles 23, § 4, c), i), 30 and 31 of Council Directive 2005/85/EC of 1er
December 2005 on minimum standards for granting and withdrawing refugee status in Member States.
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, replaced by the Act of 15 July 1996, is supplemented by 3° to 14°, as follows:
"3° national of a third country: any person who is neither a citizen of the Union, nor a person who enjoys Community law to freedom of movement as defined in article 2, point 5, of the Schengen Border Code;
4th illegal stay: the presence in the territory of a foreigner who does not meet or fulfil the conditions of access to the territory or residence;
5° return: the fact for a third country national to return, whether by voluntary obtemption after having been the subject of a removal decision or by being forced, in his country of origin or in a transit country in accordance with community or bilateral readmission agreements or in another third country in which the national concerned decides to return voluntarily and on whose territory he is authorized or admitted to the stay;
6° decision to depart: the decision to determine the illegality of a foreigner's stay and to impose an obligation to return;
7° distance: the execution of the removal decision, namely the physical transfer outside the territory;
8° Entry ban: the decision prohibiting entry and stay in the territory of the Member States for a specified period of time, which may accompany a decision to depart;
9° voluntary departure: leaving the territory within the time limit set for that purpose in the removal decision;
10th voluntary return: return of a person to his or her country of origin or to a third country on whose territory he or she is allowed to stay, following an autonomous decision to appeal to a return assistance program set up by the authorities of the host country;
11° risk of leakage: the fact that a national of a third country subject to a removal procedure presents a real and current risk of being exempted from the authorities. To do so, the Minister or his delegate relies on objective and serious elements;
12° Vulnerable person: accompanied minors, unaccompanied minors, persons with disabilities, the elderly, pregnant women, isolated parents accompanied by minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence;
13th decision 2004/573/EC: the decision of the Council of 29 April 2004 on the organization of joint flights for the removal, from the territory of two or more member states, of nationals of third countries subject to deportation measures in the territory of two or more member States;
14° foreigner identified: any foreigner
- holder of a valid travel document, valid passport or valid identity document, or
- who was recognized as a national by the national authority of his country, who declared himself ready to issue a pass, or
- that falls within the category of nationalities for which the Minister may himself issue a pass. »
Art. 4. Section 3, paragraph 1, of the Act, replaced by the Act of 15 July 1996, is supplemented by a 9°, as follows:
"9° if the citizen of a third country is subject to an entry ban or suspended or lifted. »
Art. 5. In section 7 of the Act, replaced by the Act of 15 July 1996 and amended by the Act of 29 April 1999, the following amendments are made:
1° in paragraph 1er
, the first sentence is replaced by the following:
"Without prejudice to more favourable provisions contained in an international treaty, the Minister or his delegate may issue an order to leave the territory within a specified period of time, which is neither allowed nor allowed to stay for more than three months or to settle in the Kingdom, or shall issue an order to leave the territory within a specified period of time in the cases referred to in 1°, 2°, 5°, 11° or 12°. »;
2° paragraph 1er
is supplemented by a 12°, written as follows:
"12° if the foreigner is subject to an entry ban or suspended or lifted. »;
Paragraphs 2 and 3 are replaced by the following:
" Subject to the application of the provisions of Title IIIquater, the Minister or his delegate may, in the cases referred to in section 74/14, § 3, return the alien to the border.
Unless other sufficient but less coercive measures can be applied effectively, the foreigner may be kept for that purpose, during the strictly necessary time for the performance of the measure, especially when there is a risk of leakage or when the foreigner avoids or prevents the preparation of the return or the removal procedure, and without the duration of the stay may not exceed two months.
The Minister or his or her delegate may, in the same case, assign to residence the foreigner for the time necessary to perform this measure. »
Art. 6. In article 8bis, § 4, of the same law, inserted by the law of 1er
September 2004, the words ", without prejudice to the provisions of Title IIIquater and unless other sufficient but less coercive measures can be applied effectively," are inserted between the words "The Minister or his delegate may" and the words "detaining the foreigner". »
Art. 7. In article 27, § 3 of the same law, inserted by the law of 1er
September 2004, paragraph 1er
is replaced by the following:
“Aliens referred to in §§ 1er
and 2 may, without prejudice to the provisions of Title IIIquater and unless other sufficient but less coercive measures may be applied effectively, be detained for that purpose, in particular when there is a risk of leakage or when the foreigner avoids or prevents the preparation of the return or the removal procedure for the strictly necessary time for the execution of the removal measure. »
Art. 8. Section 30 of the Act, as amended by the Act of 15 July 1996, is repealed.
Art. 9. In the same Act, an article 57/6/1 is inserted, which reads as follows:
"Art. 57/6/1. The Commissioner-General for Refugees and Stateless Persons is competent not to take into consideration the request for recognition of refugee status within the meaning of Article 48/3 or to obtain subsidiary protection status within the meaning of Article 48/4, introduced by a national of a country of safe origin or by a stateless person who had previously resided in that country, when it does not clearly reveal such breaches as it exists, in respect of the
A country is considered to be a country of safe origin when, on the basis of the legal situation, the application of the law within the framework of a democratic regime and general political circumstances, it can be demonstrated that, in a general and sustainable manner, there is no use of persecution within the meaning of the International Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, as determined by article 48/3, or In order to achieve this assessment, consideration is given, inter alia, to the extent to which protection against persecution and ill-treatment is offered, through the following:
(a) legislation and regulations adopted in the country and how they are implemented;
(b) the manner in which the rights and freedoms are respected in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights or the Convention against Torture, in particular the rights for which no derogation may be authorized in accordance with Article 15, § 2, of the European Convention;
(c) Respect for the principle of non-refoulement;
(d) the fact that it has an effective system of sanctions against violations of these rights and freedoms.
The assessment of a safe country must be based on a series of sources of information, including, in particular, information from other EU Member States, the Office of the United Nations High Commissioner for Refugees, the Council of Europe and other relevant international organizations.
On a joint proposal by the Minister and the Minister of Foreign Affairs and after the Minister has obtained the advice of the Commissioner-General for Refugees and Stateless Persons, the King shall determine, at least once a year, by a deliberate order in the Council of Ministers, the list of countries of safe origin. This list is communicated to the European Commission.
The decision referred to in section 1er
is motivated by reference to the specific circumstances of the application and must be taken within fifteen working days. »
Art. 10. In Article 57/9, paragraph 1er
, of the same law, inserted by the law of 14 July 1987 and replaced by the law of 30 December 2009, the words "in section 57/6, 1° to 7°," are replaced by the words "in sections 57/6, 1° to 7° and 57/6/1".
Art. 11. In section 52/3 of the Act, inserted by the Act of 15 September 2006, the following amendments are made:
1° in § 1er
the words "in article 7, paragraph 1er
, 1° to 11°" are replaced by the words "in article 7, paragraph 1er
1° to 12°";
2° § 1er
is supplemented by the following sentences:
"When the Council of the Aliens Litigation rejects the appeal made by the foreigner in respect of a decision taken by the Commissioner-General for Refugees and Stateless Persons in accordance with Article 39/2, § 1, 1°, and the foreigner stays irregularly in the Kingdom, the Minister or his delegate shall decide without delay that the foreigner falls in the cases referred to in Article 7, paragraph 1er
, 1° to 12°, or 27 § 1er
and § 3. This decision shall be notified promptly to the interested party in accordance with Article 51/2. »;
3° in § 2, first sentence, the words "in Article 7, paragraph 1er
, 1° to 11°" are replaced by the words "in article 7, paragraph 1er
1° to 12".
Art. 12. In section 62, paragraph 1er
, second sentence of the same law, amended by the laws of 6 May 1993 and 15 July 1996, the words "by a non-commissioned officer of the gendarmerie" are replaced by the words "by a police officer".
Art. 13. In section 63, paragraph 2, of the Act, replaced by the Act of 6 May 1993 and amended by the Act of 15 September 2006, the words "sections 74/11 and 74/14 of Title IIIquater" are inserted between the words "chapter II" and the words "are not liable".
Art. 14. In section 68, paragraph 1er
, of the same law, replaced by the law of 15 July 1996 and amended by the laws of 18 February 2003 and 15 September 2006, the words "7, paragraph 4," are inserted between the words "the articles" and the words "22", the words " and 73" are replaced by the words "73 and 74/17, § 2, paragraph 4," and the word "30" is repealed.
Art. 15. In section 74/8 of the Act, inserted by the Act of 15 July 1996 and amended by the Acts of 15 September 2006, 25 April 2007 and 6 May 2009, the following amendments are made:
1° § 1er
is supplemented by four subparagraphs as follows:
"If a defendant or convict is a foreigner in irregular residence, the competent minister for access to the territory, residence, establishment and removal of aliens or his or her delegate is informed by the director of the penitentiary institution of his or her enclosure in the penitentiary establishment from the beginning of his or her detention. Upon receipt of this information, the Minister or his delegate shall identify it by the national authorities of his country of origin. The Minister or his delegate is empowered to request any Belgian authority to produce all documents and information relevant to the identification establishment. As soon as the identification procedure is closed, the Minister or his or her delegate shall forthwith forward a document to the Director of the penitentiary institution certifying that the person concerned has been identified in accordance with section 1er
Aliens who are detained in a penitentiary institution and who are subject to an enforceable removal order are, after meeting the penalties imposed by courts and tribunals, immediately removed or transferred to a place within the Minister's jurisdiction for their effective removal.
By derogation from section 609 of the Code of Criminal Investigation, and only if the competent minister for access to the territory, residence, establishment and removal of aliens demonstrates that he or she is unable to proceed immediately to the removal or transfer, the person who is subject to an order of arrest may, in accordance with a decision of a competent authority and, to the extent that he or she is subject to an order of expulsion
This alien is isolated from ordinary detainees. »;
2° § 2 is supplemented by the words ", paragraph 1er
Art. 16. In the same law, a Title IIIquater is inserted, entitled " Provisions applicable to the return of third-country nationals on illegal residence in the territory. »
Art. 17. In Title IIIquater, inserted by Article 16, an article 74/10 is inserted, as follows:
"Art. 74/10. Except for the provisions referred to in Article 74/17, § 1er
, the provisions of this Title shall not apply to a national of a third country subject to a decision of refusal of entry pursuant to Article 13 of the Schengen Border Code or that is arrested or intercepted by the competent authorities at the time of the irregular crossing by land, sea or air of the external border of a Member State and that has not subsequently obtained the authorization or right to stay in that Member State".
Art. 18. In the same Title IIIquater, an article 74/11 is inserted, as follows:
“Art. 74/11, § 1er
. The duration of the entry ban is determined taking into account all circumstances specific to each case.
The removal decision is accompanied by a maximum entry ban three years, in the following cases:
1° where no time limit is granted for voluntary departure or
2° where an earlier removal decision has not been executed.
The maximum period of three years referred to in paragraph 2 shall be extended to a maximum of five years when a third-country national has resorted to fraud or other illegal means in order to be allowed to stay or to maintain his or her right to stay.
The removal decision may be accompanied by an entry ban of more than five years when a third-country national poses a serious threat to public order or national security.
§ 2. The Minister or his delegate refrains from issuing an entry ban when he terminates the stay of a third country national in accordance with Article 61/3, § 3, or 61/4, § 2, without prejudice to § 1er
, paragraph 2, 2°, provided that it does not represent a danger to public order or national security.
The Minister or his or her delegate may refrain from imposing an entry ban in particular cases for humanitarian reasons.
§ 3. The entry ban comes into force on the day of notification of the entry ban.
The prohibition of entry cannot contravene the right to international protection, as defined in articles 9ter, 48/3 and 48/4. »
Art. 19. In the same Title IIIquater, an article 74/12 is inserted, as follows:
"Art. 74/12. § 1er
. The Minister or his delegate may lift or suspend the entry ban for humanitarian reasons.
When two-thirds of the length of the entry ban has expired, a third-country national may apply for the suspension or lifting of the entry ban on professional or educational grounds.
Except as otherwise provided for by an international treaty, by law or by a royal decree, the national of a third country shall apply to the Belgian diplomatic or consular post competent for the place of his residence or residence abroad.
§ 2. A national of a third country may apply to the Minister or his or her delegate for the lifting or suspension of the entry prohibition on the grounds of compliance with the obligation of removal previously issued if he or she submits in writing the evidence that he or she has left Belgian territory in full compliance with the removal decision.
§ 3. A decision regarding the application for the lifting or suspension of the entry ban is made no later than four months after the introduction of the entry ban. If no decision is made within four months, the decision is deemed negative.
§ 4. During the examination of the application for lifting or suspension, a national of a third country concerned has no right of access or residence in the Kingdom.
§ 5. The Minister may, by order, define the categories of persons whose entry bans must be lifted or suspended during humanitarian disasters.
§ 6. When a national of a third country is subject to an entry ban issued by another Member State and the Minister or his or her delegate plans to issue a residence permit or other authorization conferring a right of residence, he or she shall consult the Member State beforehand to take into account the interests of the Member State.
Art. 20. In the same Title IIIquater, an article 74/13 is inserted, as follows:
"Art.74/13. When making a removal decision, the Minister or his or her delegate takes into account the best interests of the child, family life, and the state of health of the national of a third country concerned. "
Art. 21. In the same Title IIIquater, an article 74/14 is inserted, as follows:
"Art. 74/14. § 1er
. The removal decision provides a period of thirty days to leave the territory.
A third-country national who, pursuant to Article 6, is not allowed to stay more than three months in the Kingdom, shall be granted a period of seven to thirty days.
On a reasoned request filed by a third country national with the Minister or his or her delegate, the period granted to leave the territory referred to in paragraph 1er
, is extended, on the production of evidence, that voluntary return cannot be carried out without the time limit.
If necessary, this period may be extended, upon a reasoned request introduced by a third country national to the Minister or his or her delegate, in order to take into account the circumstances specific to his or her situation, such as the length of stay, the existence of children in school, the finalization of the organization of voluntary departure and other family and social ties.
The Minister or his or her delegate shall inform the national of a third country in writing that the period of voluntary departure has been extended.
§ 2. As long as the period for voluntary departure is short, a third-country national is protected from forced removal.
In order to avoid the risk of leaking during this period, a third-country national may be forced to undertake preventive measures.
The King defines these measures by a deliberate decree in the Council of Ministers.
§ 3. It may be derogated from the time limit provided in § 1er
1° there is a risk of leaking, or
2° the citizen of a third country has not respected the preventive measure imposed, or
3° the citizen of a third country constitutes a danger to public order and national security, or
4° the citizen of a third country did not obtain within the time limit for a previous removal decision, or
5° it was terminated in the territory under Article 11, § 2, 4°, Article 13, § 2bis, § 3, § 4, 5°, § 5, or Article 18, § 2, or;
6° a third country national has introduced more than two asylum applications, unless there are new elements in his application.
In this case, the removal decision provides either a delay less than seven days or no delay. »
Art. 22. In the same Title IIIquater, an article 74/15 is inserted, as follows:
"Art. 74/15. § 1er
. The Minister or his or her delegate shall take all necessary measures to implement the removal decision:
1° where no time limit has been granted to leave the territory in accordance with Article 74/14, § 3;
2° after the expiry of the period granted to leave the territory and before the expiry of the period if, during this period, one of the risks mentioned in article 74/14, § 3, 1° to 3°, occurs.
§ 2. When a third-country national opposes his or her removal or presents a risk of danger when he or she is removed, he or she is forced to return, if necessary with escort. Coercive measures may then be used in respect of him in accordance with articles 1er
and 37 of the Police Service Act of 5 August 1992.
When the detachment is carried out by air, the measures are taken in accordance with the common air detachment guidelines annexed to Decision 2004/573/EC.
§ 3. The King designates by a deliberate order in the Council of Ministers, the body responsible for the control of forced returns and determines the modalities of this control.
This body is independent of the competent authorities in matters of removal. »
Art. 23. In the same Title IIIquater, an article 74/16 is inserted as follows:
"Art. 74/16. § 1er
. Before making a decision to depart from an unaccompanied foreign minor in irregular residence on the territory, the Minister or his or her delegate takes into consideration any proposal for a durable solution from his or her guardian and takes into account the best interests of the child.
§ 2. The Minister or his or her delegate shall ensure that a minor, who is far from the territory, may be eligible in his or her country of origin or in the country where he or she is authorized or allowed to stay in foster care and care in accordance with the needs determined by his or her age and degree of autonomy, either by his or her parents or by another member of his or her family or by his or her guardian who deals with him or by governmental or non-governmental bodies.
To this end, the Minister or his delegate shall ensure that the following conditions are met:
1° that there is no risk of trafficking in human beings or trafficking in human beings and;
2° that the family situation is likely to allow the minor to be accommodated again and that a return to a parent or family member is desirable and timely based on the family's ability to attend, educate and protect the child or;
3° that the reception structure is adapted and that it is in the best interests of the child to place it in this reception structure when returning to his home country or to the country where he is allowed to stay.
The unaccompanied foreign minor and his guardian in Belgium are informed of the name of the person or the host structure to whom the child is entrusted and the role of the person in relation to the minor. »
Art. 24. In the same Title IIIquater, an article 74/17 is inserted, as follows:
"Art. 74/17. § 1er
. The removal is postponed temporarily if the decision to re-examine or depart from the territory exposes the third country's national to a violation of the principle of non-refoulement.
§ 2. The distance may be postponed temporarily taking into account the circumstances specific to each case. It is thus taken into account:
1° of the physical or mental state of the citizen of a third country;
2° of technical reasons, such as the absence of means of transport or the failure of the distance due to the lack of identification.
The Minister or his delegate shall inform the national of a third country in writing that the enforcement of the removal decision shall be postponed temporarily.
To avoid the risk of leakage, preventive measures may be taken, in accordance with Article 74/14, § 2, paragraph 3.
The Minister or his or her delegate may, in the same case, assign the national of a third country to his or her residence for the time necessary for the execution of that measure.
The Minister or his delegate orally informs the national of a third country who is kept for removal, that the enforcement of the removal decision is postponed temporarily. »
Art. 25. In the same Title IIIquater, an article 74/18 is inserted, as follows:
"Art. 74/18. A written or oral translation of the main elements of the removal decision, if any, with a prohibition of entry, including information on remedies in a language that a third-country national understands, or of which it is reasonable to assume that he or she understands, may be obtained at the request of the foreigner to the Minister or his or her delegate. This is explicitly mentioned in the decision. »
Art. 26. In the same Title IIIquater, an article 74/19 is inserted, as follows:
"Art. 74/19. Unaccompanied foreign minors cannot be held in places within the meaning of Article 74/8, § 2. »
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, 19 January 2012.
By the King:
Deputy Prime Minister and Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
The Secretary of State for Asylum and Immigration
and Social Integration,
Ms. M. DE BLOCK
Seal of the state seal:
Minister of Justice,
Ms. A. TURTELBOOM
(1) Documents of the House of Representatives:
Number 1: Bill.
No. 2: Annexes.
Number 6: Report.
No. 7: Text adopted by the commission.
No. 8: Text adopted by the commission.
9 and 10: Amendments.
No. 11: Text adopted in plenary and transmitted to the Senate.
Full report: 24 November 2011.
Documents of the Senate:
No. 1: Project not referred to by the Senate.
Documents of the House of Representatives:
No. 1: Text adopted in plenary and transmitted to the Senate.