1^er SEPTEMBER 2004. - 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:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Directive 2001/40/EC of the Council of the European Union of 28 May 2001 on the mutual recognition of decisions of removal of third-country nationals in the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens.
CHAPTER II. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 3. An article 8bis, as follows, is inserted in Title I^er, Chapter II, of the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens:
"Art. 8bis. § 1^er. The Minister or his delegate may acknowledge a decision to depart from a foreigner by a competent administrative authority of a State under Directive 2001/40/EC of the Council of the European Union of 28 May 2001 on the mutual recognition of decisions to depart from third countries, where that alien is located in the territory of the Kingdom without being allowed to stay for more than three months and when the following conditions are met:
1° the removal decision is founded:
- either on a serious and current threat to public order or national security and arises either from the condemnation of the foreigner in the State held by the above-mentioned directive, which issued this decision, for an offence punishable by deprivation of liberty of at least one year, or by the existence of serious reasons to believe that the alien has committed serious punishable acts or the existence of real facts envisaged by him
- not respecting national regulations relating to the entry or residence of aliens in that State under the above-mentioned directive;
2° the expulsion decision shall not be suspended or reported by the State which issued it abroad.
§ 2. When the removal decision referred to in § 1^er is based on a serious and current threat to public order or national security and that the foreigner who is the subject of it is allowed or allowed to stay more than three months in the Kingdom or to establish or dispose of a residence permit issued by a State held by the above-mentioned directive, the Minister or his delegate shall consult the State whose competent administrative authority has taken the decision to depart as well as, if any, the foreigner who has issued the residence.
A foreigner referred to in the preceding paragraph who is allowed to stay or to settle for more than three months in the Kingdom, may not, if any, be removed except in accordance with Articles 20 and 21.
The decision on a foreigner who has a residence permit issued by a State under the above-mentioned directive referred to in the preceding paragraph depends on the decision of that State regarding the stay of a foreigner in its territory.
§ 3. States under the above-mentioned directive at the time of the entry into force of this provision are the Member States of the European Union.
The King puts the previous paragraph in line with the result of the procedures, provided by European instruments, allowing the application of Community law to other states.
§ 4. During the recognition procedure referred to in § 1^er, the Minister or his or her delegate may hold the foreigner who is reported for non-admission on any of the grounds referred to in § 1^er, 1°, in the States parties to the Schengen Agreement Implementation Convention, signed on 19 June 1990, without the duration of detention exceeding one month.
§ 5. §§ 1^er to 4 does not apply to removal decisions made against foreigners referred to in section 40. »
Art. 4. In section 27 of the Act, as amended by the Act of 15 July 1996, the following amendments are made:
1° paragraphs 1^er and 2 form § 1^er and paragraphs 3 and 4, § 3;
2° a § 2 is inserted as follows:
"Without prejudice to the application of Articles 51/5 to 51/7, the provisions of § 1^er shall be applied to a foreign country that has received a decision of removal made against it by a competent administrative authority of a State under Directive 2001/40/EC of the Council of the European Union of 28 May 2001 on the mutual recognition of decisions of removal of third country nationals, to which it has not obtemperated and which has been recognized by the Minister or his delegate, in accordance with Article 8bis. »;
3° to § 3, new, paragraph 1^er is replaced by the following provision:
“Aliens referred to in §§ 1^er and 2 may be held for that purpose for the strictly necessary time for the enforcement of the measure";
4° § 3, new, is supplemented by the following paragraph:
"The State that issued the removal order referred to in § 2 shall be informed that the foreigner was brought back to the border of his choice or, in accordance with Article 28, to the border designated by the Minister or his delegate. »
Art. 5. In section 29 of the Act, as amended by the Acts of 6 May 1993, 15 July 1996 and 29 April 1999, the following amendments are made:
1° Paragraph 1^er, the words "by application of Article 27, paragraph 3" are replaced by the words "by application of Article 27, § 3, paragraph 1^er »;
2° Paragraph 4 is supplemented by the following sentence:
"In calculating these five months, it will be taken into account the length of the detention of the alien on the basis of Article 8bis, § 4. »
CHAPTER III. - Entry into force
Art. 6. This Act comes into force on the day of its publication in the Belgian Monitor.
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, 1^er September 2004.
ALBERT
By the King:
The Minister of the Interior,
P. DEWAEL
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
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Note
(1) Regular session 2003-2004.
House of Representatives:
Parliamentary documents. - Bill No. 1201/1. - Amendments, No. 1201/2. - Report, no. 1201/3. - Text corrected by the Commission, No. 1201/4. - Text adopted in plenary and transmitted to the Senate, No. 1201/5.
Annales parliamentarians. - Discussion and adoption. Session of July 8, 2004.
Senate:
Parliamentary documents. - Project referred to by the Senate, No. 811/1. - Amendment, no. 811/2. - Report, number 811/3. - Decision not to amend, No. 811/4.
Annales parliamentarians. - Discussion and adoption. Session of July 15, 2004.