Posted the: 2012-02-17 Numac: 2012000081 Interior FEDERAL PUBLIC SERVICE January 19, 2012. -Act amending the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Provisions General Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
S. 2. this Act partially transposes Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common procedures and standards in the Member States on the return of illegally staying third country nationals and articles 23, § 4, c), i), 30 and 31 of Directive 2005/85/EC of the Council of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status in the Member States.
CHAPTER 2. -Amendments to the Act of 15 December 1980 on access to the territory, residence, establishment and removal of aliens arts 3. in article 1 of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners, replaced by the Act of 15 July 1996, is supplemented by the 3 ° to 14 °, worded as follows: «3 ° national of a third country: any person who is neither a citizen of the Union, nor a person enjoying the community right to free movement as defined in article 2. , item 5, of the Code Schengen borders;
4 ° illegally: the presence on the territory of an alien who does not meet or no longer meets the conditions for access to the territory or residence;
5 ° return: the fact that a national of a third country to return, either by compliance voluntary after being the subject of a decision of removal or compulsorily, in his country of origin or a country of transit in accordance with community or bilateral readmission agreements or agreements in another third country in which the concerned citizen decides to return voluntarily and in the territory of which it is authorized or allowed to stay;
6 ° expulsion decision: the decision recognizing the illegality of the stay of a foreigner and imposing an obligation to return;
7 ° remoteness: the execution of the expulsion decision, namely the physical transportation out of the territory;
8 ° Prohibition of entry: the decision prohibiting the entry and residence in the territory of the Member States during a specified period, which can accompany an expulsion decision.
9 ° voluntary departure: leaving the territory within the time limit set for that purpose in the removal order;
10 ° voluntary return: return of a person to his country of origin or in a third country on the territory of which it is admitted to thinking, following an autonomous decision to call for a programme of assistance to put back in place by the authorities of the host country;
11 ° risk of leakage: the fact that a national of a third country subject to an expulsion procedure has a current and real risk to evade the authorities. To do this, the Minister or his delegate is based on objective and serious elements.
12 ° vulnerable person: minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been victims of torture, rape or other severe psychological, physical or sexual violence;
13 ° decision 2004/573/EC: decision of the Council of 29 April 2004 on the organisation of joint flights for removals from the territory of two Member States or more, of third-country nationals subject to expulsion measures on the territory of two Member States;
14 identified foreign °: any foreigner - holder of a valid travel document, valid passport or valid identification, or - has been recognized as national by the national authority of his country, which declared itself ready to issue a pass, or - that falls under the category of nationalities for which the Minister may itself issue a pass. » Art. 4. article 3, paragraph 1, of the Act, replaced by the Act of 15 July 1996, is supplemented by a 9 °, worded as follows: «9 ° If a third country national is the subject of an entry ban neither suspended nor thrown.»
S. 5 A section 7 of the Act, replaced by the Act of 15 July 1996 and amended by the law of 29 April 1999, the following changes are made: 1 ° in the paragraph 1, 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 give abroad. , which is either authorized or allowed to stay more than three months or to settle in the Kingdom, an order to leave the territory in a specified period of time or should issue in the cases referred to the 1 °, 2 °, 5 °, 11 ° or 12 °, an order to leave the territory within a specified period. »;
2 ° the paragraph 1 is supplemented by a 12 °, as follows: '12 ° if abroad is the subject of an entry ban suspended or lifted.';
3 ° paragraphs 2 and 3 are replaced by the following: ' subject to the application of title IIIquater provisions, the Minister or his delegate may, in the cases referred to in article 74/14, § 3, renew the alien to the border. ''
Unless other sufficient but less coercive measures can be effectively applied, the foreigner may be maintained to this end, for the time strictly necessary for the execution of the measure, in particular where there is a risk of absconding or when abroad avoids or prevents the preparation of return or expulsion procedure, and without that hold-time does not exceed two months.
The Minister or his delegate may, in the same case, assign to residence abroad during the time required for the implementation of this measure. » Art. 6. in article 8 bis, § 4, of the Act, inserted by the Act of 1 September 2004, the words ', without prejudice to the provisions of title IIIquater and unless other sufficient but less coercive measures can be applied effectively,' shall be inserted between the words 'the Minister or his delegate may' and the words 'do hold abroad '. » Art. 7. in article 27, paragraph 3 of the same Act, inserted by the Act of 1 September 2004, 1st paragraph is replaced by the following: "the aliens referred to in §§ 1 and 2 may, without prejudice to the provisions of title IIIquater and unless other sufficient but less coercive measures can be effectively applied, be held to this end, in particular where there is a risk of absconding or when abroad avoids or prevents the preparation of return or the procedure expulsion for the time strictly necessary for the execution of the removal measure. » Art. 8. article 30 of the Act, as amended by the Act of 15 July 1996, is repealed.
S. 9. in the same Act, it is inserted an article 57/6/1, as follows: «art.» 6-57-1. The Commissioner general to the refugees and stateless persons is responsible for not taking into consideration the application for recognition of refugee status within the meaning of article 48/3 or obtaining the status of subsidiary protection within the meaning of article 48/4, introduced by a national of a country of origin course or by a stateless person who was previously his residence in that country When it is not clear from his statements that there is, in relation to a well-founded fear of persecution within the meaning of the Convention relating to the status of refugees, signed at Geneva on 28 July 1951, as determined in article 48/3, or the grounds for believing that he runs a real risk of suffering serious harm such as determined in article 48/4.
A country is considered to be a country of origin safe when, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that, in General and sustainable manner, they no are not used persecution within the meaning of the International Convention relating to the status of refugees signed at Geneva on 28 July 1951, as determined in article 48/3, or serious grounds to believe that the asylum seeker runs a real risk of suffering serious harm such as determined in article 48/4. To carry out this assessment, account shall be taken, inter alia, the extent to which protection is provided against persecution and ill-treatment, through the following: a) the legislative and regulatory provisions adopted in the country and the manner in which they are applied;
b) how are respected the rights and freedoms in the Convention European for the safeguarding of the rights of man 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 permitted in accordance with article 15, paragraph 2, of the Convention European;
(c) respect for the principle of non-refoulement;
(d) the fact that it has a system of effective remedies against violations of these rights and freedoms.
Evaluation of a country of origin course must be based on a variety of sources of information including, in particular, the information of other Member States of the European Union, the Office of the High Commissioner of the United Nations
for refugees, the Council of Europe and other relevant international organizations.
On the joint proposal of the Minister and the Minister for Foreign Affairs and after the Minister received the notice of the Commissioner-general for refugees and stateless persons, the King determines, at least once a year by a decree deliberated in the Council of Ministers, the list of safe countries of origin. This list shall be transmitted to the European Commission.
The decision referred to in article 1 is motivated by mentioning the circumstances of the request and must be taken within a period of 15 working days. » Art. 10. in article 57/9, paragraph 1, of the Act, inserted by the Act of 14 July 1987 and replaced by the law of December 30, 2009, the words «in article 57/6, 1 ° to 7 °» are replaced by the words "in articles 57/6, 1 ° to 7 ° and 57/6/1.
11. in article 52/3, of the Act, inserted by the law of 15 September 2006, the following changes are made: 1 ° in the § 1, the words "in article 7, paragraph 1, 1 ° to 11 °» are replaced by the words" in article 7, paragraph 1, 1 ° to 12 ° ";
2 ° the § 1 is supplemented by the following sentences: "when the aliens litigation Council dismisses the action brought by the alien to a decision taken by the Commissioner-general for refugees and stateless persons in accordance with article 39/2, § 1, 1 °, and abroad staying illegally in the Kingdom, the Minister or his delegate decides without delay that the alien falls in the cases referred to in article 7 , paragraph 1, 1 ° to 12 °, or article 27, § 1, paragraph 1 and paragraph 3. This decision shall be notified without delay to the party concerned in accordance with article 51/2. »;
3 ° in the § 2, first sentence, the words "in article 7, paragraph 1, 1 ° to 11 °» are replaced by the words" in article 7, paragraph 1, 1 ° at 12.
12. in article 62, paragraph 1, second sentence of the same Act, amended by the law of 6 May 1993 and 15 July 1996, "by a non-commissioned officer of the gendarmerie" shall be replaced by the words "by a police officer.
S. 13. in article 63, paragraph 2, of the Act, replaced by the Act of 6 May 1993 and amended by the Act of September 15, 2006, the words «articles 74/11 and 74/14 of title IIIquater» are inserted between words 'chapter II' and the words 'do not qualify.
S. 14. in article 68, paragraph 1, of the Act, replaced by the Act of 15 July 1996 and amended by the law of 18 February 2003 and 15 September 2006, the words «7, paragraph 4, ' shall be inserted between the words "sections" 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.
S. 15. in article 74/8, of the Act, inserted by the Act of 15 July 1996 and amended by laws of the 15 September 2006, 25 April 2007 – 6 May 2009, the following changes are made: 1 ° the § 1 is supplemented by four paragraphs worded as follows: "If an accused or a convict is a foreigner illegally. , the competent Minister for access to the territory, residence, establishment and removal files or his delegate shall be informed by the Director of the prison of his confinement in the penitentiary and the establishment, at the beginning of his detention. Upon receipt of this information, the Minister or his delegate proceeded to the identification by the 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 establishment of identification. As soon as the identification procedure is ended, the Minister or his delegate shall immediately transmit a document to the Director of the correctional institution attesting that the person concerned has been identified, in accordance with article 1, 14 °.
Foreigners who are detained in a penal institution and which are the subject of an enforceable removal order are, after meets sentences imposed by the courts and tribunals, immediately removed or transferred to a place within the jurisdiction of the Minister for their effective removal.
By way of derogation from article 609 of the Code of criminal procedure, and only if the competent Minister for access to the territory, residence, establishment and removal of foreigners shows be unable to proceed immediately to the remote or transfer, that is the subject of a waiver of an arrest warrant may, in accordance with a decision of a competent authority and provided that it be either a royal enforceable expulsion order , or a ministerial order enforceable removal order or an order enforceable with evidence of effective removal leave, be kept in detention for a maximum of seven days to its actual distance, or failing that, by its transfer to a place that falls within the competence of the Minister for his effective removal.
This stranger is isolated inmates at common law. »;
2 ° § 2 is supplemented by the words ', paragraph 1 '.
S. 16. in the same Act, it is inserted a title IIIquater, entitled 'Provisions on the return of nationals of a third country illegally the territory.'
S. 17. in title IIIquater, inserted by article 16 article be inserted a 74/10, as follows: «art.» 74/10. Excluding the provisions referred to in article 74/17, § 1, the provisions of this title shall not apply to the third-country national subject to a decision of refusal of entry in accordance with article 13 of the Code Schengen borders or who is arrested or intercepted by authorities during the irregular crossing by land, sea or air of the external border of a Member State and who has subsequently obtained the authorization or the right to stay in that Member State '.
S. 18. in the same title IIIquater, it is inserted an article 74/11 as follows: «art.» 74/11, § 1. The length of the entry ban is fixed taking into account the circumstances specific to each case.
The expulsion decision is accompanied by a prohibition of entry of maximum three years, in the following cases: 1 ° when no time is given for voluntary departure or;
2 ° when a previous removal order has not been executed.
The maximum period of three years referred to in paragraph 2 is increased to a maximum of five years when the third-country national has resorted to fraud or other illegal means in order to be allowed to stay or maintain their right of residence.
The expulsion decision may be accompanied by a ban on entry of more five years where the third-country national is a serious threat to public order or national security.
§ 2. The Minister or his delegate shall refrain from issuing a ban of entry when terminating the residence of a national of a third country in accordance with article 61/3, § 3, 61/4, § 2, without prejudice or of § 1, paragraph 2, 2 °, provided that it does not represent a danger to public order or national security.
The Minister or his delegate may refrain from imposing a ban of entry, in special cases, for humanitarian reasons.
§ 3. The entry ban comes into force the day of notification of the entry ban.
The entry ban may contravene the right to international protection, as it is defined in articles 9B, 48/3 and 48/4. » Art. 19. in the same title IIIquater, it is inserted an article 74/12, as follows: «art.» 74/12. § 1. The Minister or his delegate may lift or suspend the prohibition of entry for humanitarian reasons.
When two-thirds of the length of the entry ban has expired, a national of a third country may request the suspension or lifting of the prohibition of entry for professional or study reasons.
Save as otherwise provided by an international treaty, by an act or by a royal decree, a national of a third country introduces a reasoned request to the competent diplomatic or consular Belgian career position to the place of his residence or his stay abroad.
§ 2. A national of a third country may submit to the Minister or his delegate, a request for lifting or suspension of the prohibition of entry motivated by respect for the obligation of removal issued previously if it transmits written proof that he left Belgian territory in full compliance with the removal order.
§ 3. A decision on the request for waiver or suspension of the prohibition of entry is taken no later than within four months following the introduction of it. If no decision is taken endeans four months, the decision is deemed negative.
§ 4. During its consideration of the request for the waiver or suspension, the third-country national has no right to access or to stay 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. Where a national of a third country is the subject of an entry ban issued by another Member State and that the Minister or his delegate is planning to issue a residence permit or another authorisation offering a right to stay, he consults in advance that Member State to take account of the latter's interests.
20. in the same title IIIquater, it is inserted an article 74/13, as follows: "s.74/13.
During the taking of a removal order, the Minister or his delegate takes into account the best interests of the child, family life, and the State of health of the third-country national. ».
21. in the same title IIIquater, it is inserted an article 74/14, worded as follows: «art.»
74/14. § 1. The expulsion decision provides a period of 30 days to leave the territory.
A national of a third country which, in accordance with article 6, is not allowed to stay for more than three months in the Kingdom, enjoys seven to thirty days.
On reasoned request submitted by a national of a third countries to the Minister or his delegate, the period granted to leave the territory mentioned in paragraph 1, is extended, on production of proof that the voluntary return can be achieved within the prescribed period.
If necessary, this period may be extended, at the reasoned request by the national of a third country to the Minister or his delegate, to take account of the circumstances of his situation, such as the duration of stay, the existence of schoolchildren, the finalization of the Organization of voluntary departure and other family and social ties.
The Minister or his delegate shall inform in writing the national of a third country that the period for voluntary departure has been extended.
2. As long as the time limit for voluntary departure short, a national of a third country is protected from a forced removal.
To avoid the risk of leakage during this period, a national of a third country may be forced to perform preventive measures.
The King sets these measures by a decree deliberated in the Council of Ministers.
§ 3. May be waived in the prescribed in the § 1 when: 1 ° there is a risk of absconding, or;
2 ° national of a third country has not respected the preventive measure imposed, or;
3 ° the third-country national is a danger to public order and national security, or;
4 ° national of a third country has not complied within the time required under a previous removal order, or;
5 ° was brought an end to his stay in the territory in accordance with article 11, § 2, 4 ° of article 13, § 2bis, § 3, 3 °, § 4, 5 °, § 5, or article 18, paragraph 2, or;
6 ° the third-country national introduces more than two claims, unless there is new evidence in its application.
In this case, the expulsion decision provides either a period of less than seven days, no time limit. » Art. 22. in the same title IIIquater, it is inserted an article 74/15, as follows: «art.» 74/15. § 1.
The Minister or his delegate shall take all measures necessary to execute the removal order: 1 ° when no time was given for leaving the territory, in accordance with article 74/14, § 3;
2 ° after expiry of the period granted to leave the territory ahead if, during this period, one of the risks mentioned in article 74/14, § 3, 1 ° to 3 °, occurs.
§ 2. When the third-country national is opposed to its remoteness or when there is a risk of danger during its remoteness, is made upon his forced return, where appropriate with escort. Coercive measures can then be used against him in respect of articles 1 and 37 of the Act of 5 August 1992 on the police function.
When the expulsion is executed by air, the measures are taken in accordance with the common guidelines of removal by air annexed to decision 2004/573/EC.
§ 3. The King shall by order deliberated in Council of Ministers, the instance entrusted with control of forced returns and determines the terms of this control.
This instance is independent of authorities competent for the removal. » Art. 23. in the same title IIIquater, it is inserted an article 74/16 worded as follows: «art.» 74/16. § 1. Before taking a decision on the expulsion of a foreign minor unaccompanied illegally staying on the territory, the Minister or his delegate takes into consideration any sustainable solution proposal by his guardian and takes into account the best interests of the child.
§ 2. The Minister or his delegate shall ensure that this minor, which is far away from the territory, can benefit in his country of origin or in the country where it is authorized or allowed to stay home and support guarantees on the basis of the needs identified by its age and its degree of autonomy, either by their parents or by another Member of his family or guardian who takes care of him , either by governmental or non-governmental bodies.
For this purpose, the Minister or his delegate shall ensure that the following conditions are met: 1 ° there is no risk of trafficking or trafficking human humans and;
2 ° that the family situation is likely to allow to welcome back the minor and that a return with a parent or a family member is desirable and appropriate depending on the capacity of the family to assist, educate and protect the child or;
3 ° that the reception structure is appropriate and that it is in the best interests of the child placed in this structure of home upon returning to his country of origin or in the country where it is allowed to stay.
The unaccompanied foreign minor and guardian in Belgium are informed of the name of the person or the structure home to whom the child is entrusted, as well as the role of this person in relation to the minor. » Art. 24. in the same title IIIquater, it is inserted an article 74/17, as follows: «art.» 74/17. § 1. The remoteness is deferred temporarily if the decision deportation or removal order at the borders of the territory exposes the third country national to a violation of the principle of non-refoulement.
§ 2. Remoteness may be deferred temporarily taking into account the circumstances of each case. It is thus taken into account: 1 ° the State physical or mental of the third-country national;
2 ° of the technical reasons, such as the absence of means of transport or the failure of remoteness lack of identification.
The Minister or his delegate shall inform in writing the national of a third country that the execution of the removal order is postponed temporarily.
Avoiding the risk of absconding, preventive measures may be taken in accordance with article 74/14, § 2, paragraph 3.
The Minister or his delegate, may, in the same case, assign to residence national of a third country during the time required for the implementation of this measure.
The Minister or his delegate orally informs the citizen of a third country which is maintained for its remoteness, the execution of the removal order is postponed temporarily. » Art. 25. in the same title IIIquater, it is inserted an article 74/18, as follows: «art.» 74/18. A translation written or oral of the main elements of the expulsion decision, accompanied where appropriate a prohibition of entry, including information on the remedies in a language the third-country national understands or which it is reasonable to assume that he understands, can be obtained on request from abroad to the Minister or his delegate. This is mentioned explicitly in the decision. » Art. 26. in the same title IIIquater, it is inserted an article 74/19, as follows: «art.» 74/19. Unaccompanied foreign minors cannot be kept in places within the meaning of article 74/8, § 2. "Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Brussels, January 19, 2012.
ALBERT 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 to asylum and Immigration and Social Integration, Ms. M. BLOCK sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Notes (1) records of the House of representatives: 53-1825-2011/2012: No. 1 : Bill.
N ° 2: Appendices.
our 3-5: amendments.
No. 6: report.
No. 7: Text adopted by the commission.
No. 8: Text adopted by the commission.
Nos. 9 and 10: amendments.
No. 11: Text adopted in plenary meeting and transmitted to the Senate.
Full report: 24 November 2011.
The Senate documents: 5-1363-11 / 2012: No. 1: project not referred by the Senate.
See also: records of the House of representatives: 53-1913-2011/2012: No. 1: text adopted in plenary meeting and transmitted to the Senate.