Changes from report parliamentary committee draft to plenary report

Added6. A third-country national may be searched or his or her personal belongings may be searched and seized, including digital and electronic devices and other items of relevance, where it is necessary and duly justified for the purpose of the return or readmission procedure and without affecting any search carried out for security reasons. Any search of the third-country national under this Regulation may be carried out without the consent of the third-country national and shall respect fundamental rights, in particular the principles of human dignity and of physical and psychological integrity and be subject to the safeguards and remedies provided for in national law.

AddedAny measure imposed in accordance with the first subparagraph of this paragraph shall respect the fundamental rights and be subject to the safeguards and remedies provided for in Union and national law.

AddedConsequences of non-compliance with the obligation to cooperate

AddedIn case of non-compliance with the obligations set out in Article 21 (1) and (2), points (a) to (k), Member States shall provide for a possibility to impose, following an individual assessment, effective, proportionate and dissuasive measures or sanctions on the third-country national, out of the following:

Added(1) refusal or reduction of certain benefits and allowances granted under Member State law to the third-country nationals concerned unless this would lead to the persons' inability to make provision of their basic needs;

Added(2) refusal or reduction of incentives granted to promote voluntary return in accordance with Article 13 or reduced assistance in return and reintegration programmes pursuant to Article 46(3);

Added(3) seizure of identity or travel documents provided that the third-country national receives a copy;

Added(4) refusal or withdrawal of work permit, pursuant to national law;

Added(5) extension of the duration of an entry ban in line with Article 10(7);

Added(6) financial penalties.

Added(6a) criminal sanctions, including imprisonment, in accordance with national lawincentivise the compliance with the obligations to leave and cooperate third-country nationals shall, for the duration of the return procedure, be subject to one or more of the following measures:

Addeda. obligation to remain within a geographical area within the Member State’s territory in which they are able to move freely;

Addedb. obligation to reside ▌at a specific address or place designated by the competent authority;

Addedc. reporting to the competent authorities at a specified time or at reasonable intervals.

Addedca. other measures than those referred to in points (a) to (c) where provided for in national law.

Added2. Paragraph 1 shall only be applied to the extent that it is compatible with the special needs of vulnerable persons and the best interests of the child.

Added3. Upon request, competent authorities may grant the third-country national permission to:

Addeda. temporarily leave the geographical area for duly justified urgent and serious family reasons or necessary medical treatment which is not available within the geographical area;

Addedb. reside temporarily outside the place designated in accordance with paragraph 1, point (b);

Addedc. temporarily not comply with the reporting obligation.

Added4. Decisions regarding the permissions listed in paragraph 3, first subparagraph, shall be taken objectively and impartially on the merits of the individual case ▌.

Added5. The third-country national shall not be required to request permission to attend appointments with authorities and courts where it would otherwise have violated the obligations in paragraph 1, and where the attendance of that third-country national is necessary. The third-country national shall notify the competent authorities of such appointments.

Added6. The third-country national shall be informed of the decisions taken in accordance with paragraph 1, points (b) and (c), and the consequences of non compliance with those decisions, and shall be made in writing, be proportionate and take into account specific circumstances of the third-country national concerned.

AddedRight to information

Added1. Third-country nationals subject to the return procedure shall be informed ▌about the following:

Addeda. the purpose, duration and steps of the return procedure as well as information on the available legal remedies and the time-limits to seek those remedies;

Addedb. the rights and obligations of third-country nationals during the return procedure as set out in Article 21 and Article 23, the consequences of non-compliance pursuant to Article 22 and 29(3), point (e), the existence of an alert on return on the person in the Schengen Information System and the recognition and enforcement of a return decision issued by another Member State in accordance with Article 9;

Addedc. return and reintegration counselling and programmes pursuant to Article 46;

Addedd. their procedural rights and obligations throughout the return procedure in accordance with this Regulation and national law, including the right to legal assistance and representation pursuant Article 25.

Added2. The information provided shall be given without undue delay in simple and accessible language and in a language which the third-country national understands or is reasonably supposed to understand, including through written or oral translation and interpretation as necessary. That information shall be provided by means of standard information sheets, either in paper or in electronic form. In the case of unaccompanied minors, the information shall be provided in a child-friendly and age-appropriate manner with the involvement of the holder of parental responsibility or the representative referred to in Article 20(2). ▌

AddedLegal assistance and representation

Added1. In the case of an appeal or a review before a judicial authority in accordance with Article 27, Member States shall, at the request of the third-country national, ensure that free legal assistance and representation is made available as necessary to ensure the right to an effective remedy and fair trial.

Added2. Member States shall ensure that unaccompanied minors are represented and assisted in such a way so as to enable them to benefit from the rights and comply with the obligations under this Regulation shall automatically be provided with free legal assistance and representation.

Added3. ▌

Added4. Free legal assistance and representation shall be provided by legal advisers or other suitably qualified persons or organisations, as admitted or permitted under national law, whose interests do not conflict or could not potentially conflict with those of the third-country national.

Added5. The provision of free legal assistance and representation in the appeal procedure may be excluded by the Member States where:

Addeda. the third-country national is considered to have sufficient resources to afford legal assistance and representation at his or her own cost;

Addedb. it is considered that the appeal has no tangible prospect of success or is abusive;

Addedc. the appeal or review is at a second level of appeal or higher, as provided for under national law, including re-hearings or reviews of appeal;

Addedd. the third-country national is already assisted or represented by a legal adviser.

Added6. The third-country national requesting free legal assistance and representation shall disclose his or her financial situation.

Added7. With the exception of any assistance provided to unaccompanied minors, and in line with the respect of the essence of the right to an effective remedy, Member States may:

Addeda. impose monetary or time limits on the provision of free legal assistance and representation, provided that such limits are not arbitrary and do not unduly restrict access to free legal assistance and representation ▌;

Addedb. request total or partial reimbursement of any costs incurred where the third-country national’s financial situation has improved during the return procedure or where the decision to provide free legal assistance and representation was taken on the basis of false information supplied by the third-country national; third-country nationals shall immediately inform the competent authorities of any significant change in their financial situation;

Addedc. provide that, as regards fees and other costs and reimbursements, the treatment of third-country nationals shall be equal to, but not more favourable than, the treatment generally given to their nationals in matters pertaining to legal assistance.

Added8. Member States shall lay down specific procedural rules governing the manner in which requests for free legal assistance and representation are filed and processed, or apply existing rules for domestic claims of a similar nature, provided that those rules do not render access to free legal assistance and representation excessively difficult or impossible.

Added9. Where a decision not to grant free legal assistance and representation is taken by an authority which is not a judicial authority on the grounds that the appeal is considered to have no tangible prospect of success or to be abusive, the applicant shall have the right to an effective remedy before a judicial authority against that decision. ▌

Added10. Member States may provide for free legal assistance and representation in the administrative procedure in accordance with national law.

AddedThe right to an effective remedy

Added1. The third-country national concerned shall be afforded an effective remedy to challenge the decisions referred to in Article 7, Article 10 and Article 12(2) before a competent judicial authority.

Added2. The effective remedy shall provide for a full ▌examination of both points of facts and points of law, including compliance with the requirements arising from the principle of non-refoulement.

Added3. ▌

AddedAppeal before a competent judicial authority

Added1. For the purpose of ensuring the right to an effective remedy in accordance with Article 26, Member States shall lay down in their national law reasonable time limits for the competent judicial authority of first instance to examine the decisions referred to in Article 7, Article 10 and Article 12(2), providing for an adequate and complete examination of the appeal. The period for lodging an appeal before a judicial authority of first instance shall not exceed 14 days.

Added2. Time limits referred to in paragraph 1 shall start to run from the date when any of the decisions referred to in Article 7, Article 10 and Article 12(2) are notified to the third-country national, or from another date to be determined by national law, notably when the third-country national concerned has absconded.

Added3. Where a return decision is based on, or issued in, the same act as a decision refusing or ending the legal stay, the time limits to appeal the return decision may be those laid down in national law for appealing a decision ending or refusing legal stay.

Added4. Where an entry ban and/or a decision ordering the removal is issued together with a return decision as referred to in Article 7, it shall be appealed against jointly with that return decision, before the same judicial authority and within the same judicial proceedings and the same time limits. Where an entry ban and/or a decision ordering the removal is issued separately from the return decision or is the only decision to be challenged, it may be appealed against separately. The time limits to bring such separate judicial proceedings shall be the same as those laid down in case where the entry ban is jointly appealed against with the return decision

Added5. Where the documents are not submitted in due time, as determined by the competent judicial authority, in the event that the translation is to be provided by the applicant, or where documents are not submitted in time for the judicial authority to ensure that they are translated in the event that the translation is ensured by the competent judicial authority, the judicial authority may refuse to take those documents into account.

Added5a. In the context of the recognition and enforcement of return decisions issued by another Member State, as provided for in Article 9, the remedy against the decisions referred to in Articles 7 and 10 and Article 12(2) shall be exercised in the issuing Member State.

AddedSuspensive effect