102 Amendments of Erik MARQUARDT related to 2016/0224(COD)
Amendment 69 #
Proposal for a regulation
Recital 30 a new
Recital 30 a new
(30a) Applicants shall have effective access to free legal assistance throughout the procedures described in this Regulation, including during the border procedure.
Amendment 73 #
Proposal for a regulation
Recital 31a
Recital 31a
(31a) In order to increase the efficiency of procedures and to reduce the risk of absconding and the likelihood of unauthorised movements, there should be no procedural gaps between the issuance of a negative decision on an applicatioA return decision should swiftly be issued in a separate decision to applicants whose applications are rejected, provided that the decision rejecting the claim is final, the applicant does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian for intother grounds under national protection and of a return decision. A return decision should immediately be issued to applicants whose applications are rejected. Without prejudice to the right to an effective remedy, the return decision should either be part of the negative decision on an application for international protection or, if it is a separate act, be issued at the same time and together with the negativlaw and that their return would not lead to risks of violations of the principle of non- refoulement or the provisions of the Charter of Fundamental Rights and other EU and international obligations. Without prejudice to the right to an effective remedy, the return decision may be issued at the same time as the final negative decision, in a separate decision.’
Amendment 79 #
Proposal for a regulation
Recital 39a
Recital 39a
Amendment 88 #
Proposal for a regulation
Recital 40
Recital 40
(40) ‘Many applications for international protection are made at the external border or in a transit zone of a Member State, often by persons apprehended in connection with unauthorised crossings of the external border or disembarked following a search and rescue operation. In order to conduct identification, security and health screening at the external border and direct the third-country nationals and stateless persons concerned to the relevant procedures, a screening is necessary. There should be seamless and efficient links between all stages of the relevant procedures for all irregular arrivals. After the screening, tarrivals. Third-country nationals and stateless persons should swiftly be channelled to the appropriate procedure, including asylum or, return procedure, or refused entry. A pre-entry phase cons, or a residence permit or other authorisationg of screening and border procedures for asylfering a right to stay for compassionate, hum and return should therefore be established.’itarian or other reasons.
Amendment 94 #
(40-a) In well-defined circumstances, Member States should be able to provide for the examination of the merits of an application at the external borders.
Amendment 97 #
Proposal for a regulation
Recital 40a
Recital 40a
(40a) ‘ The purpose of the border procedure for asylum and return should be to quickly assess asylum claims at the external borders whether applications are unfounded or inadmissible and to swiftly return those with no right to stay, while ensuring that those with well-founded claims areile ensuring that all applicants in a vulnerable situation are immediately channelled into the regular procedure and that all applicants in need are provided quick access to international protection. Member States shouldmay therefore be able to require applicants for international protection to stay at the external border or in a transit zone in order to assess the admissibility of applications. In well-defined circumstances, Member States should be able to provide for the examination of the merits of an application and, in the event of rejection of the application, for the return of the third-country nationals and stateless persons concerned at the external borders. ir applications for international protection. 8Or. en
Amendment 106 #
Proposal for a regulation
Recital 40b
Recital 40b
(40b) Member State shoulds may assess applications in a border procedure where the applicant is a danger to national security or public order,. In other cases, such as wheren the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity or nationality that could have had a negative impact on the decision and where it is likely that the application is unfounded because tis from a safe country of origin or a safe third country, Member States should not apply a border procedure. When applicant is of a nationality for whom decisions granting international protection is lower than 20% of the total number of decisions for that third country. In other cases, such as when the applicant is from a safe country of origin or a safe third country, the use of the border procedure should be optional fying the border procedure, Member States may not simultaneously apply the accelerated procedure or inadmissible procedure. A border procedure should never be applied to minors or othe Member Statesr applicants in a vulnerable situation.
Amendment 111 #
Proposal for a regulation
Recital 40b a (new)
Recital 40b a (new)
(40b a)When determining whether there is a direct connection to an unauthorised border crossing for the purpose of applying a border procedure, Member States should apply a strict interpretation and take into account the guidance found in the Return Handbook which specifies that this may concern for example persons arriving irregularly by boat who are apprehended upon or shortly after arrival; persons arrested by the police after climbing a border fence; or irregular entrants who are leaving the train/ bus that brought them directly into the territory of a Member State.
Amendment 113 #
Proposal for a regulation
Recital 40c
Recital 40c
(40c) When applying the border procedure for the examination of an application for international protection, Member States should ensure that the necessary arrangements are made to accommodate the applicants at or close to the external border or transit zones, in accordance with Directive XXX/XXX/EU [Reception Conditions Directive]. Member States may process the applications at a different location at the external border than that where the asylum application is made by transferring applicants to a specific location at or in the proximity of the external border of that Member States where appropriate facilities exist. Member States should retain discretion in deciding at which specific locations at the external borders such facilities should be set up. However, Member States should seek to limit the need for transferring applicants for this purpose, and therefore aim at setting up such facilities with sufficient capacity at border crossing points, or sections of the external border, where the majority of the number of applications for international protection are made, also taking into account the length of the external border and the number of border crossing points or transit zones. They should notify the Commission of the specific locations at the external border, transit zones or proximity of the external border where the border procedures will be carried out. In cases where the border procedure is applied and the capacity of the locations at or in proximity of the external border as notified by a Member State is temporarily exceeded, Member States may process those applications at another location within its territory, for the shortest time possibleshould therefore aim at setting up such facilities with sufficient capacity at border crossing points. They should notify the Commission of the specific border crossing points or transit zones where the border procedures will be carried out.
Amendment 126 #
Proposal for a regulation
Recital 40d
Recital 40d
(40d) In case where the use of the border procedure is an obligation, Member States should by way of exception not be required to apply itMember States should not apply the border procedure for the examination of applications for international protection from nationals of a third country that does not cooperate sufficiently on readmission, since a swift return of the persons concerned, following rejection of their applications, would be unlikely in that case. The determination of whether a third country is cooperating sufficiently on readmission should be based on the procedures set out in Article 25a of Regulation (EC) No 810/2009.
Amendment 130 #
Proposal for a regulation
Recital 40e
Recital 40e
(40e) The duration of the border procedure for examination of applications for international protection should be as short as possible while at the same time guaranteeing a complete and fair examination of the claims. It should in any event not exceed 12 weeks. This deadline should be understood as a stand-alone deadline for the asylum border procedure, encompassing both the decision on the examination of the application as well as the decision of the first level of appeal, if applicable. Within this period, Member States are entitled to set the deadline in national law both for the administrative and for the appeal stage, but should set them in a way so as to ensure that the examination procedure is concluded and that subsequently, if relevant, the decision on the first level of appeal is issued within this maximum 12 week. After that period, if the Member State nevertheless failed to take the relevant decisions, the applicant should in principle be authorised to enter the territory of the Member State. Entry into the territory should however not be authorised where the applicant has no right to remain, where he or she has not requested to be allowed to remain for the purpose of an appeal procedure, or where a court or tribunal has decided that he or she should not be allowed to remain pending the outcome of an appeal procedure. In such cases, to ensure continuity between the asylum procedure and the return procedure, the return procedure should also be carried out in the context of a border procedure for a period not exceeding 12 weeks. This period should be counted starting from the moment in which the applicant, third- country national or stateless person no longer has a right to remain or is no longer allowed to remainAfter that period, if the Member State nevertheless failed to take the relevant decisions, the applicant should be channelled into the regular asylum procedure.
Amendment 139 #
Proposal for a regulation
Recital 40f
Recital 40f
(40f) While the border procedure forDuring the examination of ansylum application for international protection can be applied without recos subject to the border procedurse to detention, Member States should nevertheless be able to apply the grounds for detention during the border procedure in accordance with the provisions of the [Reception Conditions] Directive (EU) XXX/XXX in order to decide on the right of the applicant to enter the territoryliberty should be the norm. Any detention during the border procedure must be a measure of last resort and must be necessary, reasonable and proportionate to a legitimate aim. If there are grounds to deprive a person of their liberty, alternatives to detention should always be considered first. Minors and other individuals in a situation of vulnerability should never be detained. If detention is used during such procedure, the provisions on detention of the [Reception Conditions] Directive (EU) XXX/XXX should apply, including the guarantees for detained applicants and the fact that an individual assessment of each case is necessary, judicial control and conditions of detention. The necessity to maintain an applicant in detention must be reviewed periodically.
Amendment 142 #
Proposal for a regulation
Recital 40f a (new)
Recital 40f a (new)
(40f a) A decision to restrict freedom of movement or to detain an applicant during a border procedure should be made in writing stating reasons for the use of such measures in fact and law, and should never be automatic. A decision to detain an applicant should always be based on an individual assessment of each case which shows that detention is necessary and proportionate, that detention would not disproportionately harm the applicant and that less coercive measures would not be effective in the individual case. Decisions to detain an applicant should be subject to judicial oversight and applicants should be granted access to free legal aid to challenge the detention decision.
Amendment 145 #
Proposal for a regulation
Recital 40 g
Recital 40 g
(40g) When an application is rejected in the context of the border procedure, the applicant, third-country national o and the Member sStateless person concerned should be immediately subject to a return decision or, where the conditions of Article 14 of Regulation (EU) No 2016/399 of the European Parliament and of the Council10 are met, to a refusal of entry. To guarantee the equal treatment of all third-country nationals whose application has been rejected in the context of the border procedure, where a Member State has decided not to apply the provisions of Directive XXX/XXX/EU [Return Directive] by virtue of Article 2(2), point (a), of that Directive and does not issue a return decision to the third-country national concerned, the treatment and level of protec has determined that the applicant does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other grounds under the applicable national legal framework and that their return would not lead to risks of violations of the principle of non-refoulement and other fundamental rights obligations under the Charter of Fundamental Rights and other EU and international obligation ofs, the applicant, third- country national or stateless person concerned should be in accordance with Article 4(4) of Directive XXX/XXX/EU [Return Directive] and be equivalent to those applicable to persons subject to a swift return decision. _________________ 10Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 077 23.3.2016, p. 1) in accordance with Directive XXX/XXX/EU [Return Directive].
Amendment 146 #
Amendment 155 #
Proposal for a regulation
Recital 40i
Recital 40i
Amendment 162 #
Proposal for a regulation
Recital 40j
Recital 40j
(40j) It should be possible for aA Member State to which an applicant is relocated in accordance with Regulation (EU) No XXX/XXX [Asylum and Migration Management Regulation] to examine the application in a border procedure provided that the applicant hasshall not yet be en authorised to enter the territory of the Member States and the conditions for the application of such a procedure by the Member State from which the applicant was relocated are met.’titled to examine the application in a border procedure .
Amendment 163 #
Proposal for a regulation
Recital 40j a (new)
Recital 40j a (new)
(40j a) To ensure that border procedures are carried out in full compliance with EU law including the Charter of Fundamental Rights, humanitarian actors, international organisations, non- governmental organisations and other relevant stakeholders should be granted unhindered access to applicants subject to border procedures as well as to the facilities in which they take place.
Amendment 164 #
Proposal for a regulation
Recital 40j b (new)
Recital 40j b (new)
(40j b) An independent monitoring mechanism should be set up and effective remedies shall be made available to the victims of human rights violations that occur in the course of border procedures.
Amendment 166 #
Proposal for a regulation
Recital 44a
Recital 44a
Amendment 172 #
Proposal for a regulation
Recital 65
Recital 65
(65) ‘For an applicant to be able to exercise his or her right to an effective remedy against a decision rejecting an application for international protection, all effects of the return decision should be automatically suspended for as long as the applicant has the right to remain or has been allowed to remain on the territory of a Member State. Tnd to improve the effectiveness of procedures at the external border, while ensuring the respect of the right to an effective remedy,all appeals against such decisions taken in the context of the border procedure should take place only before a single level of jurisdiction of a court or tribunalshould have automatic suspensive effect.
Amendment 177 #
Proposal for a regulation
Recital 66
Recital 66
(66) Applicants should, in principle, have the right to remain on the territory of a Member State until the time-limit for lodging an appeal before a court or tribunal of first instance expires, and, where such a right is exercised within the set time-limit, pending the outcome of the appeal. It is only in the limited cases set out in this Regulation, where applications are likely to be unfounded, that the applicant should not have an automatic right to remain for the purpose of the appeal.
Amendment 183 #
Proposal for a regulation
Recital 66a
Recital 66a
(66a) ‘In cases where the applicant has no automatic right to remain for the purpose of the appeal, a court or tribunal should still be able to allow the applicant to remain on the territory of the Member State pending the outcome of the appeal, upon the applicant’s request or acting of its own motion. In such cases, applicants should have a right to remain until the time-limit for requesting a court or tribunal to be allowed to remain has expired and, where the applicant has presented such a request within the set time-limit, pending the decision of the competent court or tribunal. In order to discourage abusive or last minute subsequent applications, Member States should be able to provide in national law that applicants should have no right to remain during that period in the case of rejected subsequent applications, with a view to preventing further unfounded subsequent applications. In the context of the procedure for determining whether or not the applicant should be allowed to remain pending the appeal at the second or further level, the applicant’s rights of defence should be adequately guaranteed by providing him or her with the necessary interpretation and legal assistance. Furthermore, the competent court or tribunal should be able to examine the decision refusing to grant international protection in terms of facts and points of law.
Amendment 187 #
Proposal for a regulation
Recital 66b
Recital 66b
(66b) In order to ensure the right to an effective returnsmedy, applicants should not havemaintain a right to remain on the Member State’s territory at the stage of a second or further level of appeal before a court or tribunal against a negative decision on the application for international protection, without prejudice to the possibility for a court or tribunal to allowdecide that the applicant to remain. Furthermore, Member States should not grant applicants the possibility to lodge a further appeal against a first appeal decision in respect of a decision taken in a border procedurshould not have the right to remain at that stage.
Amendment 189 #
Proposal for a regulation
Recital 66c
Recital 66c
Amendment 202 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
Amendment 204 #
Proposal for a regulation
Article 27 – paragraph 5
Article 27 – paragraph 5
Amendment 207 #
Proposal for a regulation
Article 27 – paragraph 6
Article 27 – paragraph 6
6. Where bBiometric data could not be taken during the screening in accordance with Regulation (EU) No XXX/XXX [Eurodac Regulation] or where the applicant was not subject to a screening, the competent authorities shall take the biometric datashall be taken by the competent authorities at the latest upon the registration of the application for international protection and transmit them together with the data referred to in Article 12 (c) to (p) of Regulation (EU) No XXX/XXX [Eurodac Regulation] to the Central System and to the Common Identity Repository respectively in accordance with that Regulation.’
Amendment 210 #
Proposal for a regulation
Article 35 a
Article 35 a
Where an application is rejected as inadmissible, unfounded or manifestly unfounded with regard to both refugee status and subsidiary protection status, or as implicitly or explicitly withdrawn and that decision has become final, Member States shall issue a separate return decision that respects Directive XXX/XXX/EU [Return Directive]. The return decision shall be issued as part of the decision rejecting the application for international protection or, in a separate act. Where t, provided that the applicant does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other grounds under the applicable national legal framework and that their return would not lead to risks of violations of the principle of non-refoulement and other fundamental rights obligations under the Charter of Fundamental Rights and other EU and international obligations.. The return decision is issued as a separate act, it shallmay be issued at the same time and together with the final decision rejecting the application for international protection.’ , provided that there has been an individual assessment of the full scope of the principle of non-refoulement.
Amendment 214 #
Proposal for a regulation
Article 40 – point a – paragraph 1 – point i
Article 40 – point a – paragraph 1 – point i
Amendment 222 #
Proposal for a regulation
Article 40 – point b – paragraph 5 – point c
Article 40 – point b – paragraph 5 – point c
Amendment 232 #
Proposal for a regulation
Article 41 – paragraph 1 – introductory part
Article 41 – paragraph 1 – introductory part
1. Following the screening procedure carried out in accordance with Regulation (EU) No XXX/XXX [Screening Regulation], and provided that the applicant has not yet been authorised to enter Member States’ territory, aA Member State may examine an application in a border procedure where that application has been made by a third- country national or stateless person who does not fulfil the conditions for entry in the territory of a Member State as set out in Article 6 of Regulation (EU) 2016/399. The border procedure may take place, after an individual assessment of the circumstances of the case, including an examination of vulnerabilities and potential special reception and procedural needs:
Amendment 234 #
Proposal for a regulation
Article 41 – paragraph 1 – point a
Article 41 – paragraph 1 – point a
(a) following an application made at an external border crossing point or in a transit zone; or
Amendment 237 #
Proposal for a regulation
Article 41 – paragraph 1 – point b
Article 41 – paragraph 1 – point b
(b) following apprehension in connection withduring or immediately after an unauthorised crossing of the external border;, provided there is a direct connection to the act of the irregular border crossing.
Amendment 243 #
Proposal for a regulation
Article 41 – paragraph 1 – point c
Article 41 – paragraph 1 – point c
Amendment 244 #
Amendment 249 #
Proposal for a regulation
Article 41 – paragraph 2 – introductory part
Article 41 – paragraph 2 – introductory part
2. Where a border procedure is applied, decisions may be taken on the following:merits of an asylum application with full respect of all procedural rights and safeguards in this Regulation without prejudice to Article 41 paragraph 11.
Amendment 254 #
Proposal for a regulation
Article 41 – paragraph 2 – point a
Article 41 – paragraph 2 – point a
Amendment 256 #
Proposal for a regulation
Article 41 – paragraph 2 – point b
Article 41 – paragraph 2 – point b
Amendment 261 #
Proposal for a regulation
Article 41 – paragraph 3
Article 41 – paragraph 3
Amendment 265 #
Proposal for a regulation
Article 41 – paragraph 3 a (new)
Article 41 – paragraph 3 a (new)
3a. Individual procedural rights as provided in this Regulation, such as access to information, free legal assistance and representation, and interpretation shall be effectively guaranteed during the entire border procedure.
Amendment 266 #
Proposal for a regulation
Article 41 – paragraph 3 b (new)
Article 41 – paragraph 3 b (new)
3b. By derogation from paragraph 2, where a border procedure is applied, Member States shall not take a decision on the following: (a) the admissibility of an application in accordance with Article 36 (b) the merits of an application in an accelerated examination procedure in the cases referred to in Article 40(1)
Amendment 271 #
Proposal for a regulation
Article 41 – paragraph 4 – first paragraph
Article 41 – paragraph 4 – first paragraph
4. A Member State may decide not to apply paragraph 3shall not examine an application in a border procedure with respect to nationals or stateless persons who are habitual residents of third countries for which that Member State has submitted a notification to the Commission in accordance with Article 25a(3) of Regulation (EC) No 810/2009.
Amendment 273 #
Proposal for a regulation
Article 41 – paragraph 4 – second subparagraph
Article 41 – paragraph 4 – second subparagraph
Amendment 280 #
Proposal for a regulation
Article 41 – paragraph 4 – third subparagraph – introductory part
Article 41 – paragraph 4 – third subparagraph – introductory part
Where the Commission considers that the third country concerned is not cooperating sufficiently, the Member State may continueshall not to apply paragraph 3border procedures:
Amendment 287 #
Proposal for a regulation
Article 41 – paragraph 5
Article 41 – paragraph 5
5. The border procedure may onlyshall not be applied to unaccompanied minors andor to minors below the age of 12 and their family members in the cases referred to in Article 40(5) (b).
Amendment 292 #
Proposal for a regulation
Article 41 – paragraph 5 a (new)
Article 41 – paragraph 5 a (new)
5a. The border procedure shall not be applied to applicants with specific procedural or reception needs, following an assessment in line with Article 19 APR.
Amendment 302 #
Proposal for a regulation
Article 41 – paragraph 6
Article 41 – paragraph 6
6. Applicants subject to the border procedure shall not be authorised to enter the territory of the Member State, without prejudice to paragraphs 9 and 11are under the jurisdiction of the Member State and shall be treated in accordance with Directive XXX/XXX/EU [Reception Conditions Directive recast].
Amendment 306 #
Proposal for a regulation
Article 41 – paragraph 7
Article 41 – paragraph 7
7. When applying the border procedure, Member States mayshall carry out the procedure for determining the Member State responsible for examining the application as laid down in Regulation (EU) No XXX/XXX [Regulation on Asylum and Migration Management], without prejudice to the deadlines established in paragraph 11. Following the transfer of the applicant to the responsible Member State, the Member State shall not apply or continue to apply a border procedure.
Amendment 314 #
Proposal for a regulation
Article 41 – paragraph 8
Article 41 – paragraph 8
8. WhereIn the conditions for applying the border procedure are metase of asylum applicants who demonstrate to have family members in another Member State from which the applicant is relocated, a border procedure may be applied by the Member State to which the applicant i, the border procedure shall not apply, or shall cease to apply. The Member State where the family members arelocated in accordance with Article [x] of Regulation EU (No) XXX/XXX [Regulation on Asylum and Migration Management], including in the cases referred to in paragraph 1, point (d) present should be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
Amendment 317 #
Proposal for a regulation
Article 41 – paragraph 9 – point a
Article 41 – paragraph 9 – point a
Amendment 324 #
Proposal for a regulation
Article 41 – paragraph 9 – point b
Article 41 – paragraph 9 – point b
(b) the necessary support cannot be provided toapplicant has been identified as an applicants with specialfic procedural needs in the locations referred to in paragraph 14or reception needs;
Amendment 330 #
Proposal for a regulation
Article 41 – paragraph 9 – point d a (new)
Article 41 – paragraph 9 – point d a (new)
(da) the debriefing following the screening pursuant to [Screening Regulation] contains elements that indicate that the applicant is in a vulnerable situation, is a victim of torture or has special reception or procedural needs.
Amendment 333 #
Proposal for a regulation
Article 41 – paragraph 9 – subparagraph 2
Article 41 – paragraph 9 – subparagraph 2
In such cases, the competent authority shall authorise the applicant to enter the territory of the Member Statecontinue to assess the applicant’s claim in the regular asylum procedure. Vulnerabilities should be continuously considered, identified and assessed at all stages of the border procedure. Due consideration should be given to persons with less visible vulnerabilities, such as torture survivors, victims of human trafficking and persons with mental health conditions.
Amendment 338 #
Proposal for a regulation
Article 41 – paragraph 10
Article 41 – paragraph 10
Amendment 345 #
Proposal for a regulation
Article 41 – paragraph 11 – subparagraph 1
Article 41 – paragraph 11 – subparagraph 1
11. The border procedure shall be as short as possible while at the same time enabling a complete and fair examination of the claims. It shall encompass the decision referred to in paragraph 2 and 3 and any decision on an appeal if applicable and shall be completed within 12 weeks from when the application is registered. Following that period, the applicant shall be authorised to enter the Member State’s territory except when Article 41a(1) is applicablchannelled into the regular asylum procedure.
Amendment 352 #
Proposal for a regulation
Article 41 – paragraph 11 – subparagraph 2
Article 41 – paragraph 11 – subparagraph 2
By way of derogation from the time limits set in Articles 34, 40(2) and 55, Member States shall lay down provisions on the duration of the examination procedure and of the appeal procedure which ensure that, in case of an appeal against a decision rejecting an application in the framework of the border procedure, the decision on such appeal is issued within 12 weeks from when the application is registered.
Amendment 354 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – introductory part
Article 41 – paragraph 12 – subparagraph 1 – introductory part
12. By way of derogation from paragraph 11 of this Article, thDuring the border procedure applicants shall not be authorised to enter the Member State’s territory where:have the automatic right to remain during the period of appeal against a negative asylum decision and pending its outcome.
Amendment 356 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – point a
Article 41 – paragraph 12 – subparagraph 1 – point a
Amendment 360 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – point b
Article 41 – paragraph 12 – subparagraph 1 – point b
Amendment 363 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 1 – point c
Article 41 – paragraph 12 – subparagraph 1 – point c
Amendment 369 #
Proposal for a regulation
Article 41 – paragraph 12 – subparagraph 2
Article 41 – paragraph 12 – subparagraph 2
Amendment 377 #
Proposal for a regulation
Article 41 – paragraph 13
Article 41 – paragraph 13
13. During the examination of applications subject to a border procedure, the applicants shall be kept at or in proximity to the external border or transit zonesaccommodated in accordance with the provisions of the [Reception Conditions Directive]. Each Member State shall notify to the Commission, [two months after the date of the application of this Regulation] at the latest, the locations where the border procedure will be carried out, at the external borders, in the proximity to the external border or transit zones, including when applying paragraph 3 and ensure that the capacity of those locations is sufficient to process the applications covered by that paragraph. Any changes in the identification of the locations at which the border procedure is applied, shall be notified to the Commission two months in advance of the changes taking effect.
Amendment 378 #
Proposal for a regulation
Article 41 – paragraph 13 a (new)
Article 41 – paragraph 13 a (new)
13a. Member States should ensure that the necessary arrangements are made to accommodate applicants in accordance with Article 7 [Reception Conditions Directive], which states that applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow effective access to all rights and benefits under this Directive.
Amendment 379 #
Proposal for a regulation
Article 41 – paragraph 13 b (new)
Article 41 – paragraph 13 b (new)
13b. Where Member States impose restrictions on freedom of movement, a decision in writing should qualify the measures as either detention or restrictions on freedom of movement, and should state the reasons for these measures in fact and law.
Amendment 380 #
Proposal for a regulation
Article 41 – paragraph 13 c (new)
Article 41 – paragraph 13 c (new)
13c. A Member State shall not hold an applicant in detention in the context of a border procedure unless it has individually assessed that applicant’s case based on the principles of necessity and proportionality. Detention shall only be applied as a measure of last resort and for the shortest time as possible, provided that an individual and motivated assessment has demonstrated that less coercive measures cannot be applied effectively in the specific case and that detention would not be disproportionately harmful. A vulnerability assessment should always be carried out before detention and repeated regularly. Free legal aid should be available to challenge the detention order.
Amendment 381 #
Proposal for a regulation
Article 41 – paragraph 13 d (new)
Article 41 – paragraph 13 d (new)
13d. Member States shall ensure that staff who engage in the border procedure have been provided with appropriate training including on fundamental rights.
Amendment 382 #
Proposal for a regulation
Article 41 – paragraph 13 e (new)
Article 41 – paragraph 13 e (new)
13e. Member States shall set up an independent monitoring mechanism, allowing independent human right bodies in line with the Paris Principles, to regularly assess the conditions in the facilities used for the purpose of a border procedure and issue recommendations for their amelioration, sharing them with the Commission.
Amendment 383 #
Proposal for a regulation
Article 41 – paragraph 13 f (new)
Article 41 – paragraph 13 f (new)
13f. National authorities shall grant humanitarian actors, international organisations, non-governmental organisations and other relevant stakeholders effective access to all applicants subject to border procedures as well as the facilities in which border procedures take place at the borders or in transit zones.
Amendment 387 #
Proposal for a regulation
Article 41 – paragraph 14
Article 41 – paragraph 14
14. In situations where the capacity of the locations notified by Member States pursuant to paragraph 143 is temporarily insufficient to process the applicants covered by paragraph 3, Member States may designate other locations within the territory of the Member State and upon notification to the Commission accommodate applicashall channel applicants intso there, on a temporary basis and for the shortest time necessary regular asylum procedure.
Amendment 396 #
Proposal for a regulation
Article 41 a – title
Article 41 a – title
Amendment 398 #
Proposal for a regulation
Article 41 a – paragraph 1
Article 41 a – paragraph 1
Amendment 402 #
Proposal for a regulation
Article 41 a – paragraph 2
Article 41 a – paragraph 2
Amendment 408 #
Proposal for a regulation
Article 41 a – paragraph 3
Article 41 a – paragraph 3
Amendment 412 #
Proposal for a regulation
Article 41 a – paragraph 4
Article 41 a – paragraph 4
Amendment 420 #
Proposal for a regulation
Article 41 a – paragraph 5
Article 41 a – paragraph 5
Amendment 425 #
Proposal for a regulation
Article 41 a – paragraph 6
Article 41 a – paragraph 6
Amendment 428 #
Proposal for a regulation
Article 41 a – paragraph 7
Article 41 a – paragraph 7
Amendment 434 #
Proposal for a regulation
Article 41 a – paragraph 8
Article 41 a – paragraph 8
Amendment 440 #
Proposal for a regulation
Article 43
Article 43
Amendment 445 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – introductory part
Article 53 – paragraph 1 – subparagraph 1 – introductory part
1. Applicants shall have the right to an effective remedy before a court or tribunal againstin accordance with the basic principles and guarantees provided for in Chapter II against the following:
Amendment 452 #
(da) a detention decision
Amendment 455 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1 – point e
Article 53 – paragraph 1 – subparagraph 1 – point e
(e) a return decisiondecisions taken in a border procedure.
Amendment 459 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 2
Article 53 – paragraph 1 – subparagraph 2
Amendment 461 #
Proposal for a regulation
Article 53 – paragraph 2
Article 53 – paragraph 2
2. Persons recognised as eligible for subsidiary protection shall have the right to an effective remedy against a decision considering their application unfounded in relation to refugee status. Where subsidiary protection status granted by a Member State offers the same rights and benefits as refugee status under Union and national law, the appeal against that decision in that Member State may be considered as inadmissible where provided for in national law.
Amendment 464 #
Proposal for a regulation
Article 53 – paragraph 2 a (new)
Article 53 – paragraph 2 a (new)
2a. The applicant shall have a right to an oral hearing before a first appeal court of tribunal.
Amendment 465 #
Proposal for a regulation
Article 53 – paragraph 3
Article 53 – paragraph 3
3. An effective remedy within the meaning of paragraph 1 shall provide for a full and ex nunc examination of both facts and points of law, at least before a court or tribunal of first instance, including, where applicable, an examination of the international protection needs pursuant to Regulation (EU) No XXX/XXX [Qualification Regulation], as well as an examination pursuant to Articles 2, 3 and 8 ECHR and Articles 2, 4 and 7 of the Charter for Fundamental Rights.
Amendment 468 #
Proposal for a regulation
Article 53 – paragraph 3 a (new)
Article 53 – paragraph 3 a (new)
3a. In case of a negative decision on an asylum request in an asylum border procedure as regulated by Article 41 of this Regulation, the judicial review at first instance shall automatically include a review of the decision to channel an applicant into that procedure.
Amendment 470 #
Proposal for a regulation
Article 53 – paragraph 4
Article 53 – paragraph 4
4. Applicants shall be provided with interpretation in a language they understand for the purpose of a hearing before the competent court or tribunal where such a hearing takes place and where appropriate communication cannot otherwise be ensured.
Amendment 476 #
Proposal for a regulation
Article 53 – paragraph 6
Article 53 – paragraph 6
Amendment 483 #
Proposal for a regulation
Article 53 – paragraph 7 – point a
Article 53 – paragraph 7 – point a
(a) at least one weekmonth in the case of a decision rejecting an application as inadmissible, as implicitly withdrawn or as unfounded if at the time of the decision any of the circumstances listed in Article 40(1) or (5) apply;
Amendment 489 #
Proposal for a regulation
Article 53 – paragraph 7 – point b
Article 53 – paragraph 7 – point b
(b) between a minimum of two weeksone month and a maximum of two months in all other cases.
Amendment 491 #
Proposal for a regulation
Article 53 – paragraph 8
Article 53 – paragraph 8
8. The time-limits referred to in paragraph 7 shall start to run from the date when the applicant effectively receives the decision of the determining authority is notified to the applicant or his or her representative or legal adviser. If the applicant has requested free legal assistance, the time-limits shall only start to run from the date on which a legal adviser is appointed in case this date is later than the one of notification. The procedure for notification shall be laid down in national law.
Amendment 495 #
Proposal for a regulation
Article 53 – paragraph 9
Article 53 – paragraph 9
Amendment 498 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
Amendment 505 #
Proposal for a regulation
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Applicants shall have the right to remain on the territory of the Member States until the time-limit within which to exercise their right to an effective remedy before a court or tribunal of first instance has expired and, where such a right has been exercised within the time-limit, pending the outcome of the remedy.
Amendment 507 #
Proposal for a regulation
Article 54 – paragraph 3
Article 54 – paragraph 3
Amendment 521 #
Proposal for a regulation
Article 54 – paragraph 4
Article 54 – paragraph 4
Amendment 523 #
Proposal for a regulation
Article 54 – paragraph 5
Article 54 – paragraph 5
Amendment 531 #
Proposal for a regulation
Article 54 – paragraph 6
Article 54 – paragraph 6
Amendment 536 #
Proposal for a regulation
Article 54 – paragraph 7
Article 54 – paragraph 7
Amendment 541 #
Proposal for a regulation
Article 54 a (new)
Article 54 a (new)
Article 54a Monitoring of fundamental rights in the border procedure 1. The Commission shall set up an independent monitoring mechanism, in cooperation with the Member States, NHRIs and relevant Union bodies, in particular the European Union Agency for Asylum, in line with the mechanism established by [Screening Regulation]. That mechanism shall aim to ensure: (a) that all actors involved in the border procedure comply with Union and international law during the border procedure; (b) compliance, where applicable, with European rules on the detention of persons, in particular rules concerning the grounds for and the duration of detention as well as the applicable legal requirements; (c) that allegations of breaches of fundamental rights in relation to the asylum border procedures, including in relation to access to the asylum procedure and the principle of non-refoulement, are investigated and followed up effectively and without undue delay. 2. The findings of the border monitoring mechanism should be made available to police authorities, for subsequent enquiries and potential disciplinary measures, as well as to the judicial authorities, for subsequent criminal investigations of serious violations of human rights. 3. The Commission shall put in place adequate safeguards to guarantee the independence of the monitoring mechanism referred to in the first subparagraph. The border monitoring mechanism should notably be allowed to receive and act on information provided by relevant and competent national, regional and international bodies as well as non-governmental organizations. 4. The European Union Agency for Fundamental Rights shall provide the Commission with general guidance on the setting up of the monitoring mechanism referred to in the first subparagraph, including as regards the independent functioning of the mechanism, the monitoring methodology it uses and appropriate training schemes. 5. The EU Asylum Agency shall carry out the monitoring function in Article 13 and 14 [EUAA Regulation] with regard to all aspects of the border procedure, including the facilities in which border procedures take place. 6. The Commission shall invite relevant national, international and non- governmental organisations and bodies to participate in the monitoring carried out as part of the monitoring mechanism referred to in the first subparagraph. Where monitoring carried out as part of the monitoring mechanism referred to in paragraph 2 determines that there have been breaches of fundamental rights, effective remedies shall be made available to the victims of the identified human rights violations.