belgiquelex.be - Carrefour Bank of Legislation

10 AVRIL 2014. - Law on various provisions concerning proceedings before the Council of the Aliens Litigation and before the Council of State

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. This Act partially transposes Directive 2013/32/EU of the European Parliament and the Council of 26 June 2013 on common procedures for the granting and withdrawal of international protection (refused), i.e. Articles 41 and 46.
PART II. - The emergency procedure
to the Aliens Litigation Council
CHAPTER 1^er. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 3. In article 39/28, paragraph 2, paragraph 3, of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens, inserted by the law of 15 September 2006, the words "articles 39/82, § 4, paragraph 2 and 39/85, paragraph 2" are replaced by the words "articles 39/82, § 4, paragraph 6, and 39/85, § 2, paragraph 1^er".
Art. 4. Article 39/57, § 1^erthe same Act, replaced by the Act of 6 May 2009 and amended by the Acts of 29 December 2010 and 8 May 2013, is supplemented by a paragraph written as follows:
"The application referred to in article 39/82, § 4, paragraph 2, shall be filed by request within 10 days of the notification of the decision against which it is directed. When it is a second distance or return measure, the time limit is reduced to five days. ".
Art. 5. In section 39/82 of the Act, inserted by the Act of 15 September 2006, partially annulled by Constitutional Court Decision No. 81/2008 and amended by the Acts of 6 May 2009 and 8 May 2013, the following amendments are made:
1° § 2, paragraph 1^er, is supplemented by the following sentence:
"The latter condition is, inter alia, fulfilled if a serious means has been invoked on the basis of fundamental human rights, in particular the rights to which no derogation is possible under Article 15, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ";
2° § 4, paragraph 2, is replaced by the following paragraphs:
"When the alien is subject to a measure of expulsion or return, whose execution is imminent, especially when he is kept in a specified place referred to in sections 74/8 and 74/9 or is made available to the Government, he may, if he has not yet requested the suspension by the ordinary channel, request the suspension of the execution in extreme emergency of that measure within the period referred to in Article 39/^erParagraph 3.
If the application is manifestly late, the presiding officer of the seized chamber or the judge of the contentious aliens whom he or she designates indicates in his or her order and promptly summons the parties to appear within 24 hours of receipt of the application.
The Speaker of the Chamber or the Judge of the Aliens Dispute conducts a careful and rigorous examination of all the evidence brought to his or her knowledge, in particular those who are likely to indicate that there are grounds to believe that the execution of the decision under attack would expose the applicant to the risk of being subjected to the violation of fundamental human rights to which no derogation is possible under Article 15, paragraph 2, of the European Convention on Human Rights
The request for an emergency suspension shall be considered within 48 hours of its receipt by the President of the Chamber or by the judge to the litigation of foreigners. However, this period is extended to five days after the date of receipt by the Council of this application, where the actual removal or refoulement of the alien is scheduled at a later date within eight days.
If the Speaker of the Chamber or the Judge of the Aliens Litigation does not decide within the time limit, he must notify the First President or the President of the Chamber. The Committee shall take the necessary measures to make a decision, as the case may be, no later than seventy-two hours after receipt of the request, or, as soon as possible. In both cases, it can notably evoke the case and decide itself.
By derogation from the foregoing paragraphs, the presiding officer of the seized chamber or the judge of the litigation of aliens whom he designates shall give priority to the admissibility of the application, if necessary without summoning the parties where the following conditions are met:
1° it is a second measure of distance or return, and
2° the application is obviously late, and
3° the application is filed less than twelve hours before the time provided for the execution of the measure, and
4° the applicant and, where applicable, his lawyer shall be informed at least 48 hours before the time provided for the execution of the measure.
If he declares the application inadmissible, the decision terminates the proceedings. If he declares the request admissible, the procedure shall be continued as provided for in paragraphs 3 to 6.".
Art. 6. Section 39/83 of the Act, restored by the Act of 6 May 2009 and amended by the Act of 8 May 2013, is replaced by the following:
"Art. 39/83. Except as agreed by the person concerned, the forced enforcement of the expulsion or return measure to which the alien is subjected shall be carried out only after the expiry of the period of appeal referred to in article 39/57, § 1^er, paragraph 3, or, where the application for an emergency suspension of the execution of this measure was filed within that time limit, only after the Commission rejected the application. ".
Art. 7. Section 39/85 of the Act, inserted by the Act of 15 September 2006, partially annulled by Constitutional Court Decision No. 81/2008 and amended by the Act of 8 May 2013, is replaced by the following:
"Art. 39/85. § 1^er. Where the foreigner is subject to a removal or return action that is imminent, in particular where he is subsequently held in a specified place referred to in sections 74/8 and 74/9 or is made available to the Government, the foreigner may, by means of interim measures within the meaning of section 39/84, request that the Council consider, as soon as possible, an application for an ordinary suspension before being made, on condition that it be entered This request for interim measures must be submitted within the period referred to in Article 39/57, § 1^erParagraph 3.
If the application is manifestly late, the presiding officer of the seized chamber or the judge of the contentious aliens whom he or she designates indicates in his or her order and promptly summons the parties to appear within 24 hours of receipt of the application.
The Speaker of the Chamber or the Judge of the Aliens Litigation shall conduct a careful and rigorous examination of all the evidence brought to his or her knowledge, in particular those who are likely to indicate that there are grounds to believe that the execution of the decision under attack would expose the applicant to the risk of being subjected to the violation of fundamental human rights to which no derogation is possible under Article 15, paragraph 2, of the European Convention on Human Rights.
Under penalty of inadmissibility of the application filed by means of interim measures, for the examination of the application for suspension of the execution of another act that may be cancelled under section 39/2, the removal or return measure referred to in paragraph 1^er, must, at the same time, be the subject of a request for interim measures or an application for an emergency suspension of its execution.
By derogation from the foregoing paragraphs, the presiding judge of the seized chamber or the judge of the litigation of aliens whom he designates shall give priority to the admissibility of the application, if necessary without summoning the parties, where the following conditions are met:
1° it is a second measure of distance or return, and
2° the application is obviously late, and
3° the application is filed less than twelve hours before the time provided for the execution of the measure, and
4° the applicant and, where applicable, his lawyer shall be informed at least 48 hours before the time provided for the execution of the measure.
If he declares the application inadmissible, the decision terminates the proceedings. If he declares the request admissible, the procedure shall be pursued as provided in §§ 2 to 4.
§ 2. The request for interim measures and the application for suspension shall be considered jointly and processed within 48 hours of receipt by the Commission of the request for interim measures. However, this period is extended to five days after the Commission's receipt of the request for interim measures, where the actual removal or refoulement of the alien is scheduled at a later date after the eight-day period.
If the presiding judge of the seized chamber or the judge of the litigation of the seized aliens does not take a decision within the time limit, he shall notify the first president or the president of the Chamber. The Committee shall take the necessary measures to make a decision, as the case may be, no later than seventy-two hours after receipt of the request, or, as soon as possible. In both cases, he may evoke the case and decide himself.
§ 3. Without prejudice to § 1^erat the time of receipt of the request for interim measures, it may not be carried out by force of the expulsion or return measure until the Commission has made a decision on the application. If the suspension has not been granted, the forced enforcement of the measure is again possible.
§ 4. The King shall, by order deliberately in the Council of Ministers, establish the content of the application referred to in this article, the manner in which it shall be introduced and the procedure. ".
CHAPTER 2. - Transitional provisions
Art. 8. § 1^er. Sections 4 and 5, 2°, shall apply to applications for an extreme emergency suspension of the execution of any expulsion or return measures, notified after the date of entry into force of this Act, and the execution of any subsequent decision to such a measure, in respect of the same alien.
§ 2. Section 7 is applicable to requests for interim measures of extreme urgency, introduced by any alien who is the subject of a decision, by which the enforcement of the removal or return measure becomes imminent, which is notified to it after the date of entry into force of this Act.
PART III. - Case Law Unit
CHAPTER 1^er. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 9. Article 39/6, § 3, paragraph 4, of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens, inserted by the law of 15 September 2006 is replaced by the following:
"He shall promptly communicate to the first president and the president the cases which, in his view, must be dealt with by the chambers brought together in order to ensure the unity of case law or for the development of law and those for which a party requests the referral to the chambers brought together in the interest of the unity of case law. ".
Art. 10. The title of Section III of Chapter 2 of Title I^erbis of the Act is replaced by the following:
"Section III. - The general assembly and the chambers gathered."
Art. 11. Section 39/11 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 39/11. The General Assembly of the Council shall consist of the members of the Council referred to in Article 39/4, paragraph 1^er . It sits in pairs that cannot be less than ten, including the one who chairs it.
It is made up of equal numbers of members of the Council who have justified by their degree that they have passed the examination of a doctor, a Licensee or a Master of Law in the French language on the one hand and in the Dutch language on the other.
The General Assembly is chaired by the first President or, if not, by the President. If not, the Presidency shall be exercised by the chamber chair presenting with the most seniority, or, if any, by the judge to the litigation of foreigners present with the most seniority.
Except for hearings referred to in Article 39/12, § 1^er, paragraph 4, the administrator shall attend the general meetings whenever matters relating to his or her competence are on the agenda. With regard to these subjects, he has an advisory voice.
In the event of a parity of voice, the voice of the President of the General Assembly is preponderant. ".
Art. 12. Section 39/12 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 39/12. § 1^er. When the first president or the president, after receiving the opinion of the judge to the litigation of foreigners in charge of the hearing report, considers that it is necessary, with a view to the unity of case law or the development of law, that a case be dealt with by the chambers brought together, he or she orders the referral to them.
If the president and the first president do not feel necessary to convene the chambers together, the room chair informs the chambers that are familiar with the dispute. If one of these chambers, after deliberation, asks for the convening of the chambers, the first president is required to follow up or to refer the matter to the General Assembly.
The first president or the president is also required to respond to a request for referral to the chambers brought together for the unity of jurisprudence when formulated by both parties.
If it considers that the interest of the case requires it, the first president or the president may, by derogation from the foregoing, decide to refer the matter to the General Assembly.
§ 2. The rooms brought together are composed of six members of the Council, three of whom are justified by their degree that they have passed the examination of Doctor, Licensee or Master of Law in the French language and three in the Dutch language.
The first president and the president shall each designate for their linguistic role the members of the Council who make up the chambers. For remedies referred to in Article 39/2, § 1^er, the members who make up the rooms gathered are chosen from those who usually deal with this contentious. For the remedies referred to in Article 39/2, § 2, the members who make up the chambers gathered are chosen from among those who usually deal with this dispute.
The chambers brought together are presided over by the first president or by the president if the case is a dispute that he usually deals with. If not, they are presided over by the chamber chair with the most seniority who usually treats this contentious or, if not, by the member of the Council present with the most seniority who usually treats this litigation.
In the event of a parity of voice, the voice of the one who presides the chambers gathered is preponderant.".
CHAPTER 2. - Amendments to the laws on the Council of State, coordinated on 12 January 1973
Art. 13. Article 20, § 2, paragraph 4, of the laws on the Council of State, coordinated on 12 January 1973, restored by the law of 15 September 2006, is supplemented by the words "in the administrative jurisdiction referred to in Article 14, § 2, or the Council of State".
Art. 14. In section 92, § 2, the same laws, inserted by the law of 15 September 2006, the following amendments are made:
1° in paragraph 1^er, the words "or examination of this remedy" are inserted between the words "in the meaning of Article 20" and the words ", considers that";
2° in paragraph 1^erthe last sentence is repealed;
The paragraph shall be supplemented by the following paragraphs:
"If the appeal for cassation within the meaning of section 20 is declared admissible, the first president or the president, if he is responsible for the administrative litigation section, orders the dismissal of the appeal in chambers of the administrative litigation section whenever the decision under appeal has been rendered by the administrative court in general assembly or in chambers. The same is true when, after taking the opinion of the auditor, in charge of the report, the Auditor General considers that, in order to ensure the unity of jurisprudence, the case must be dealt with by the chambers brought together.
If he or she considers that the interest of the case requires it, the first president or the chair if he or she is responsible for the administrative litigation section may decide, by derogation from the above, to refer the matter to the general assembly of the administrative litigation section. It does so when, after taking the opinion of the auditor, in charge of the report, the Auditor General considers that, in order to ensure the unity of jurisprudence, the case must be dealt with by the General Assembly. ".
CHAPTER 3. - Transitional provision
Art. 15. Sections 13 and 14 are applicable to administrative appeals filed after the date of entry into force of this Act.
PART IV. - The procedure for appealing to the Aliens Litigation Council against the decisions of the Commissioner-General for Refugees and Stateless Persons referred to in article 57/6/1, paragraph 1^erand Article 57/6/2 of the Law of 15 December 1980
CHAPTER 1^er. - Amendments to the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 16. In Article 39/2, § 1^er, from the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, inserted by law 15 September 2006 and replaced by the Act of 8 May 2013, the following amendments are made:
1° paragraph 2 is supplemented by a 3° written as follows:
"3° without prejudice to 1° or 2°, cancel the appealed decision of the Commissioner-General for Refugees and stateless persons of non-taking into consideration the asylum application referred to in Article 57/6/1, paragraph 1^er, or in article 57/6/2, paragraph 1^erfor the reason that there are substantial indications that the applicant may claim recognition of the refugee status within the meaning of section 48/3 or the granting of subsidiary protection within the meaning of section 48/4. ";
2° in paragraph 3, the 2° and 3° are repealed.
Art. 17. Article 39/57, § 1^er, paragraph 2, of the Act, last amended by the Act of 8 May 2013, is replaced by the following:
"The request is filed within fifteen days of notification of the decision against which it is directed:
1° where the appeal is brought by a foreigner who is at the time of notification of the decision in a specified place referred to in articles 74/8 and 74/9 or is made available to the Government;
2° where the appeal is directed against a decision not taken into consideration referred to in Article 57/6/1, paragraph 1^er;
3° where the appeal is directed against a decision not taken into consideration referred to in article 57/6/2, paragraph 1^er. This period is reduced to ten days when the appeal is brought by a foreigner who is at the time of notification of the decision in a specified place referred to in sections 74/8 and 74/9 or is made available to the Government against a first decision not taken into consideration. This period is reduced to five days from a second decision not taken into consideration. ".
Art. 18. Section 39/70 of the Act, inserted by the Act of 15 September 2006, is supplemented by a paragraph written as follows:
"Paragraph 1^er does not apply where a return decision does not result in direct or indirect refoulement as determined under section 57/6/2 and:
1° the person concerned filed an initial application for subsequent asylum within forty-eight hours before his removal only in order to delay or prevent the execution of a decision that would result in his removal from the territory; or
2° the person concerned has introduced a subsequent new asylum application following a final decision on a subsequent first application. ".
Art. 19. In the same Act, an article 39/72/1 is inserted as follows:
"Art. 39/72/1. By derogation from sections 39/71 and 39/72, where the appeal is brought against a decision not taken into consideration under article 57/6/1, paragraph 1^er or Article 57/6/2, paragraph 1^er, the Clerk shall send copies of it immediately and at the latest in the working day, i.e. neither a Saturday nor a Sunday nor a holiday, following the inclusion of the role of the Commissioner-General for Refugees and stateless persons. In this case, the clerk indicates that the file, possibly accompanied by a comment note, must be filed at the Registry within three business days from the notification. ".
Art. 20. In section 39/76 of the Act, inserted by the Act of 15 September 2006 and replaced by the Act of 8 May 2013, the following amendments are made:
1° in § 1^erParagraph 1^erthe first sentence is supplemented by the following:
", except in the case of a decision not taken into consideration under section 57/6/1, paragraph 1^er, or in article 57/6/2, paragraph 1^er".
2° § 3 is supplemented by a paragraph written as follows:
"The presiding judge or judge of the litigation of aliens whom he designates shall make a decision within thirty days of the receipt of the appeal against the decision of the Commissioner-General for Refugees and stateless persons not taken into account the asylum application referred to in article 57/6/1, paragraph 1^er, or in article 57/6/2, paragraph 1^er, or if the request has been regulated pursuant to Article 39/69, § 1^er, after receipt of regularization, or if a duty of role must be paid, from the registration of the role. ".
Art. 21. In Ierbis, chapter 5, section II, sub-section 3 of the Act, an article 39/77/1 is inserted as follows:
"Art. 39/77/1. § 1^er. Where the appeal against the decision not taken into consideration referred to in Article 57/6/2, paragraph 1^er, is introduced by a foreigner who is in a specified place referred to in sections 74/8 and 74/9 or who is made available to the government, the Chief Clerk or the Clerk whom he designates shall send copies thereof, immediately and at the latest in the working day, that is, not on a Saturday, or on a Sunday, or on a public holiday, following the receipt of the appeal that may be included in the role, the Commissioner General for Refugees and for Persons. The Clerk asks the Clerk to file the file with the Registry within the time limit that the Clerk fixes and cannot exceed two working days from the notification.
Immediately and at the latest in the working day, i.e., not a Saturday, no Sunday, or a public holiday, following the receipt of the appeal that may be included in the role, the House Speaker or the Aliens Dispute Judge whom he has designated sets the case and summons the parties to appear before him within three working days of the date of receipt of the attachment.
The President of the Chamber or the judge designated by the President may summon, by order, the parties to the specified place referred to in sections 74/8 and 74/9 where the alien is located or at the place where he is made available to the government, at the day and time he or she fixes, even on Sunday or on a holiday.
The summons sets out the day on which the administrative file can be consulted in the registry by the parties and their lawyer.
If the respondent has not forwarded the administrative file in time prior to the hearing, it shall be submitted to the chair, who shall take the necessary steps to allow the other parties to the proceeding to consult it.
§ 2. The presiding judge or judge of the disputed aliens appointed shall pronounce in accordance with Article 39/76, §§ 1^er and 2.
The presiding judge or judge of the litigation of the aliens seized shall take a decision within two working days after the closure of the proceedings. It may order the immediate execution of the decision.
§ 3. In the case of a foreigner who is placed, during the course of the proceedings, in a specified place referred to in articles 74/8 and 74/9 or who is made available to the Government, the appeal shall be considered in full law following this expedited procedure. Unless the appeal is already established, the procedure shall be carried out in this case in accordance with this article, irrespective of its condition, provided that the time limit set out in § 1^er, paragraph 2, is at least three working days. ".
Art. 22. In section 39/81 of the Act, inserted by the Act of 15 September 2006 and last amended by the Act of 8 May 2013, the following amendments are made:
1° in paragraph 1^erin the penultimate draw, the figures "57/6/1, 57/6/2," are repealed;
2° in paragraph 3, the words "and if section 39/73 does not apply" are replaced by the words "and if neither section 39/73 nor the specific procedural rules referred to in section 39/68, paragraph 2, apply".
Art. 23. In article 57/6/2, paragraph 1^er, from the same law, inserted by the law of 8 May 2013, the second sentence is supplemented by the words "and it considers in a reasoned manner that a return decision will not result in direct or indirect refoulement".
CHAPTER 2. - Transitional provisions
Art. 24. This title is applicable to appeals against decisions of non-compliance, referred to in Article 57/6/1, paragraph 1^er, or in article 57/6/2, paragraph 1^erof the Act of 15 December 1980 on Access to Territory, Residence, Establishment and Displacement of Aliens, which were notified from the date of entry into force of this Act.
Art. 25. With regard to decisions not taken into account, referred to in articles 57/6/1, paragraph 1^erand 57/6/2, paragraph 1^er, of the above-mentioned Act of 15 December 1980, which has been notified before the date of the coming into force of this Act and for which the time limit for the introduction of a 30-day cancellation appeal is still pending, the requesting party may choose to introduce, within that time limit, a request in accordance with section 39/2, § 1^erParagraph 1^erthe law of 15 December 1980. If an application for cancellation is made, it will be made in accordance with section 26, of this Act.
Art. 26. § 1^er. With regard to remedies for annulment brought against a decision not taken into consideration referred to in articles 57/6/1, paragraph 1^erand 57/6/2, paragraph 1^er, of the above-mentioned Act of 15 December 1980 and enlisted, prior to the coming into force of this Act, and which has not yet been subject to a final judgment at that time, the Registry of the Aliens Litigation Council shall inform the requesting party, by registered mail, that it may file a new request for the processing of it in accordance with Article 39/2, § 1^erParagraphs 1^er and 2, Act of 15 December 1980.
§ 2. The requesting party shall have a period of thirty days from the notification of the shipment referred to in § 1^erto file a new request in the sense referred to in § 1^er.
§ 3. When the requesting party fails to file a new application within the time limit set out in § 2, the Commission shall rule on the basis of the original application filed, which shall be considered to the appeal referred to in Article 39/2, § 1^erParagraph 1^erthe law of 15 December 1980.
When the requesting party has filed a new application within the time limit referred to in § 2, the requesting party is considered to have distracted from the original application and the Commission shall rule only on the basis of the new application.
In the cases referred to in paragraph 1^er and 2, the procedure shall be continued in accordance with the provisions of Article 39/2, § 1^erParagraph 1^erthe Act of 15 December 1980 and articles 19 and 20, 2°, of this Act, without prejudice to section 21 of this Act.
Art. 27. With regard to remedies for cancellation, brought against a decision not taken into consideration referred to in articles 57/6/1, paragraph 1^erand 57/6/2, paragraph 1^er, of the above-mentioned Act of 15 December 1980, before the coming into force of this Act, but which have not yet been enlisted at that time, the Registry of the Aliens Litigation Council shall, if any, address the mail referred to in section 39/69, § 1^er, paragraph 5, of the Act of 15 December 1980, simultaneously with the sending referred to in Article 26, § 1^erof this Act.
The proceedings shall be pursued in accordance with Article 26 of this Law, provided that the request is regulated in accordance with Article 39/69, § 1^erParagraph 6 of the Act of 15 December 1980.
Art. 28. Unless otherwise agreed by the foreigner, no measures of removal from the territory may be enforced in a forced manner, during the proceedings referred to in sections 25, 26 and 27 of this Act, or during the examination of the appeal referred to by the Aliens Litigation Council, without prejudice to section 18 of this Act.
PART V. - Miscellaneous provisions
Art. 29. In Article 30, § 1^erParagraph 1^er, laws on the Council of State, coordinated on 12 January 1973, replaced by the law of 4 August 1996 and amended by the laws of 6 and 20 January 2014, the word "11bis," is inserted between the number "11" and the number "12".
Art. 30. In section 83, paragraph 2, of the same laws, inserted by the law of December 31, 1983, the word "deep" is replaced by the word "sufficient".
Art. 31. In Article 39 of the Law of 20 January 2014 on the reform of the competence, procedure and organisation of the Council of State, the words "at any appeal or request made from that date" are replaced by the words "at any request for suspension or interim measures introduced under the benefit of the extreme emergency, from that date, and which is not the accessory of a remedy of annulment introduced before that date,
Art. 32. Section 29 comes into force on 1^er July 2014.
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 on 10 April 2014.
PHILIPPE
By the King:
The Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
The Secretary of State for Asylum and Migration,
Ms. M. DE BLOCK
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2013-2014
House of Representatives
Documents. - 53-3445
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary session and transmitted to the Senate.
Full report: 26 and 27 March 2014.
Senate
Documents. - 5-2816
No. 1: Project transmitted by the House of Representatives.
No. 2: Amendments.
Number three: Report.
Number 4: Text adopted in plenary session and subject to Royal Assent.
Annales of the Senate: April 3, 2014.