Changes from report parliamentary committee draft to plenary report

Added1. This Regulation does not provide for the automatic suspensive effect of an appeal. The enforcement of the decisions issued pursuant to Article 7, Article 10 and Article 12(2) may, upon request or ex officio, be suspended by the competent judicial authority until the expiry of the time limit within which the third-country national may exercise the right to an effective remedy or, where an appeal has been lodged, pending the outcome of the appeal before a judicial authority of first instance referred to in Article 27 ▌. This shall be without prejudice to provisions of national law according to which remedies before a court or tribunal of first instance have suspensive effect.

Added1a. In the assessment of this request, the competent authorities may rely on an existing thorough assessment of all relevant circumstances carried out at previous stages of the return procedure and, where relevant, of the asylum procedure.

Added▌

Added▌

Added2. ▌

AddedGrounds for detention

Added1. Member States may detain a third-country national pursuant to this Regulation on the basis of an individual assessment of each case and only in so far as detention is proportionate.

Added2. Member States may only keep in detention a third-country national for the purpose of preparing the return, readmission or carrying out the removal.

Added3. A third-country national may only be detained based on one or more of the following grounds for detention:

Addeda. risk of absconding determined in accordance with Article 30;

Addedb. the third-country national avoids or hampers the preparation of the return, the readmission or the removal process;

Addedc. the third-country national poses security risks in accordance with Article 16;

Addedd. to determine or verify his or her identity or nationality;

Addede. non-compliance with the measures ordered pursuant to Articles 21 and 31, including the lack of cooperation in obtaining travel documents.

Addedea. any other relevant factor indicating that detention is necessary to ensure a timely and effective return, as determined by the Member States and in accordance with national law.

Added4. Those detention grounds shall be laid down in national law.

Added5. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered by a written decision giving the reasons in fact and in law on which it is based as well as information about available legal remedies. The decision shall be communicated to the third-country national orally or in writing in a language that the third-country national understands or may reasonably be presumed to understand, including the use of interpretation or translation services.

Added6. When detaining a third-country national pursuant to paragraph 2, Member States shall take into account any visible signs, statements or behaviour related to, or made or shown by, the third-country national indicating that he or she is a vulnerable person.

AddedRisk of absconding

Added1. There is a risk of absconding in an individual case, unless proven otherwise, when one of the following criteria is fulfilled:

Addeda. the third-country national has entered or moved without authorisation to the territory of another Member State or other Member States, including following a transit through a third country, or attempts to do so;

Addedb. the third-country national is subject to a return decision or enforcing decision issued by a Member State other than the one on the territory of which the person is currently staying illegally, including as detected through the alerts entered in the Schengen Information System pursuant to Regulation (EU) 2018/1860;

Addedc. the third-country national does not comply with the measures pursuant to Article 23;

Addedca. the third-country national has re-entered the territory of the Member States in violation of a valid entry ban;

Addedcb. the third-country national physically or violently opposes the removal.

Added2. In cases not covered by paragraph 1, the risk of absconding shall be determined on the basis of an overall assessment of the specific circumstances of the individual case and where one of the following criteria regarding the third-country national concerned is met:

Addeda. lack of residence, fixed abode or reliable address;

Addedb. ▌expression of intent of non-compliance with return-related measures applied by virtue of this Regulation, or actions clearly demonstrating intention not to comply with such measures;

Addedc. non-compliance with the obligations of a return decision until the date by which the third-country national is to leave the territory of the Member States as set out in Article 13;

Addedcc. when departure is imminent and there are reasonable grounds to believe that the third-country national intends to violate the obligation to cooperate as set out in Article 21(2), point (a);

Addedd. non-compliance with the obligation to cooperate with the competent authorities of the Member States at all stages of the procedures pursuant to this Regulation, as referred to in Article 21(2) ▌;

Addede. when departure is imminent and there are serious reasons to believe third-country national intends to violate the obligation to cooperate as set out in Article 21(2), point (l);

Addedf. using false or forged identity or travel documents, residence permits or visas, or documents justifying conditions of entry, destroying or otherwise disposing of such documents, using aliases with fraudulent intent, providing other false information in an oral or written form, or otherwise fraudulently opposing the return or readmission procedure;

Addedg. ▌;

Addedh. ▌;

Added2a. Member States may determine that a third-country national poses a risk of absconding on the basis of additional factors or evidence recognised under national law, insofar as these elements justify such a conclusion and contribute to ensuring the effective and timely enforcement of the return decision.

AddedAlternatives to detention

Added1. Member States shall provide for alternative measures to detention in national law. Such measures shall primarily aim to ensure the effective and timely return of the third-country national and shall be ordered taking into account the individual circumstances of the third-country national concerned, including ▌the level of the risk of absconding assessed in accordance with Article 30.

Added2. For that purpose, Member States may impose one or more of the following measures:

Addeda. the obligation to regularly report to competent authorities with a frequency of up to 3 days, based on the individual circumstances;

Addedb. the obligation to surrender identity or travel documents to the competent authorities;

Addedc. the obligation to reside in a place designated by competent authorities;

Addedd. deposit of an adequate financial guarantee;

Addede. the use of electronic monitoring ▌

Addedea. restriction of movement or curfews to designated areas;

Addedeb. any other measures where provided for in national law.

Added3. A decision to apply measures referred to in paragraph 2 shall state the relevant reasons in fact and in law.

Added4. Third-country nationals shall be notified of any decision to apply measures referred to in paragraph 2 of this Article and shall be informed about the consequence of non-compliance with that decision, including detention pursuant to Article 29(3) ▌

Added5. Member States shall ensure that the decisions taken in accordance with paragraph 2 of this Article are reviewed speedily by a judicial authority on application by the person concerned or ex officio.

AddedDetention period

Added1. Detention shall be maintained for as short a period as possible and for as long as the grounds laid down in Article 29 are fulfilled and it is necessary to ensure the effective, timely and successful return of the third-country national.

Added2. When it appears that the grounds laid down in Article 29 are no longer fulfilled, detention shall cease to be justified ▌the third-country national shall be released. Such release shall not preclude the application of measures ▌in accordance with Article 23 and Article 31.

Added3. The detention shall not exceed 12 months in a given Member State. Detention may be extended for a period not exceeding a further 12 months in a given Member State where the return procedure is likely to last longer owing to a lack of cooperation by the third-country national concerned, or delays in obtaining the necessary documentation from third countries, or in exceptional circumstances provided for in national legislation, where necessary to ensure return.

Added4. The expiry of the maximum detention period in accordance with paragraph 3 does not preclude the application of measures in accordance with Article 23 and Article 31.

Added4a. Member States may prolong the detention of third-country nationals identified as posing a security risk in accordance with Article 16(3), point (c), for a period exceeding the maximum duration referred to in paragraph 3 of this Article.

Added4b. Where a third-country national is cooperating on their return during detention, the voluntary return of the third-country national concerned shall be organised without undue delay. Detention may, where relevant, be maintained until departure to ensure effective return.

AddedReview of detention orders

Added1. Detention shall be reviewed at regular intervals of time and at least every six months either on application by the third-country national concerned or ex officio.

Added2. Detention of unaccompanied minors shall be reviewed ex officio at regular intervals of time and at least every three months or, when duly justified, upon request of a representative appointed pursuant to Article 20(2).

Added3. Where detention has been ordered or extended by administrative authorities, Member States shall ensure that all relevant facts, evidence and observations submitted during the proceedings are subject to judicial review, by providing that: