Proposition 54K1506

Projet de loi modifiant la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Dec. 7, 2015

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

action brought before an administrative court admission of aliens rights of aliens

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo ∉ Open Vld N-VA LDD MR PP VB

Voted to reject

PS | SP PVDA | PTB

Abstained from voting

LE DéFI

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 10, 2015 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Secretary of State, colleagues, at the committee meeting of 9 December, yesterday, therefore, this bill was discussed. In his introductory presentation and explanation, the Secretary of State points out that the high influx of asylum seekers forces us to play short on the ball. This should prevent the procedures from lasting too long. This requires not only more resources, personnel and internal reorganization, but also legislative adjustments where necessary. All possibilities should be exhausted in order to speed up the effective timing of the appeal proceedings, without, of course, affecting the legal protection of the persons concerned.

Particularly in the case of asylum seekers who are detained, the utmost urgency should be sought. For the appeals in full jurisdiction in that group of asylum seekers, the effective treatment period is currently 14.2 days. For the appeals against a refusal to consider multiple asylum applications from detained asylum seekers, that is 7.5 days. These deadlines are already good, but there is still room for improvement. Any possible margin must be used absolutely, as the capacity of the closed centers is limited, so the shorter the stay in those closed centers, the more yield can be obtained from that capacity.

A first way to speed up the procedure is that all appeals brought within the framework of those two accelerated procedures are immediately registered on the roll. In the current state of affairs, this can only be done if the petition meets all legal conditions. If the Office determines that this is not the case, the regularisation of the petition continues to last indefinitely. The current bill aims precisely to reverse the course of affairs, by stipulating that every petition is immediately registered on the roll and that its regularisation remains possible until the court hearing takes place.

A second way to speed up the procedure is to send the pieces of the procedure by fax. This provides a significant time saving and is practically perfectly feasible, as the current UDN procedure – the procedure in extreme urgency – has been running according to this mechanism for years. This draft law extends this possibility to the appeal procedure against refusals of consideration of multiple asylum applications submitted by detained asylum seekers, as is already the case for the appeal procedures against refusal decisions in a first asylum application.

Finally, this bill responds to the criticism of the cancellation procedure formulated by the Constitutional Court in its judgment of 30 April 2015. Now it is true that if the synthesis memory is not or delayed to be sent electronically to the Council for Foreign Disputes, the appeal is declared in itself inadmissible. In line with the findings of the Constitutional Court, the delay of the synthesis memory is now punished only by the inadmissibility of the synthesis memory itself, but not of the petition. Consequently, in such cases, the Council will still have to decide on the grounds of the appeal based on the petition. The safeguards already built in order to provide adequate legal protection without excessive formalism are thus ⁇ ined and further expanded.

In the general discussion, I myself concluded that the bill is in line with other measures taken by the federal government to ensure that the processing and flow of asylum files proceed as smoothly as possible. The draft law will accelerate the procedure in full jurisdiction, thereby keeping the period during which persons are detained as short as possible. At the same time, it will also result in savings for the government, as the Financial Inspectorate noted in its very favourable opinion.

As a preliminary comment, Mr. Kir indicates that at the beginning of the reign, the Secretary of State had announced that the Foreigners Act would be codified. However, this bill aims to make specific changes to that law once again. The speaker then asks how it is with the working group that was considered to be drafting that migration legislation. What will be the timing of those work, he wondered.

Under the guise of a simplification of the procedure, he says, the government once again reduces the rights of defence of the foreigner through the bill under discussion, because the abolition of the eight-day regularization period threatens to weaken the position of the foreigner.

Although it is still possible to regularise the petition, there is still the risk that the applicant will only find out at the hearing that certain documents are missing and therefore is not able to submit those documents. The speaker therefore considers it necessary that the applicant be given the opportunity to supplement the file in advance.

Ms Schepmans indicates that her group supports the bill under discussion, as it allows the period of detention to be shortened without affecting the fundamental rights of the foreigner or his legal rights. The draft is therefore strictly in compliance with the government agreement. In addition, the judgment no. 49/2015 of the Constitutional Court, in which the Court annulled Article 39/81 of the Foreigners Act.

Mrs Lanjri notes that the proposed procedure responds to the observations in the same judgment of the Constitutional Court of 30 April 2015 and also welcomes the optimisation of the procedures in full jurisdiction. Ms. Lanjri also states that the reference to the use of the fax is fortunately temporary and that the fax will be replaced by e-mail as soon as possible. The Secretary of State has so far cooperated well with the Minister of Justice on the removal of persons in illegal residence with a criminal record, said Ms. Lanjri. She is confident that this will also happen for the abolition of the use of fax. Finally, Mrs. Lanjri asks how many ongoing appeal procedures the proposed scheme covers, how many procedures in UDN there are currently, what concrete time gain the bill will provide and how many places with that new scheme in the closed reception can be liberated.

Mrs. Gabriëls, so far the only one present among the people I have already mentioned, stands behind the care of faster and more efficient procedures that will lead to shorter stays in the closed reception. However, she also hopes that the use of fax will soon be a thing of the past and that the regulation...

Sorry, Mr. Kir, you are there too. It wasn’t nice of me, sorry. correction in the report.

Mrs Gabriëls also hopes that the use of fax will soon be a thing of the past and that the regulation will be quickly adjusted in favor of the use of newer technologies.

Ms. De Coninck supports the care of faster and more efficient procedures that will lead to shorter stays in the closed shelter. It does not oppose a faster, more efficient and more transparent procedure, but calls for the legitimate concern to be applied throughout the chain. There is also room for optimization in other parts of the chain. It will also be a matter for the government, according to Ms. De Coninck, to put those shorter procedures into practice. Furthermore, she hopes, like Mr. Kir, that the new migration legislation will soon become a reality.

Mr De Vriendt concluded on the basis of his analysis, which remained relatively limited due to the late availability of the draft law, that the proposed procedure will increase efficiency without compromising the legal protection for the petitioner. In fact, the procedure is still interrupted in time if it turns out that not all formalities have yet been fulfilled after the entry on the role. He asks the Secretary of State to provide concrete figures of the efficiency gains that will be achieved with this bill. Furthermore, the State Council is quite positive about the draft law and has not made any fundamental comments. Mr. De Vriendt asks how the Secretary of State fits the draft law into the global reform of the Foreign Law and whether there are other limited legislative initiatives to follow in anticipation of the global exercise.

Mrs Matz indicates that she is rather in favour of this bill, which aims to make the procedure more efficient, but she regrets that it was submitted so late in the House of Representatives. It also emphasizes that the succession of the specific amendments introduced in the Act of 15 December 1980 will not improve the general comprehensiveness of the foreign law. Like Mr. Kir, she also asks when that conscious migration law will come out. From a legal point of view, this draft law does not necessarily appear to restrict the rights of the defence; however, the abolition of the regularisation period could be a distorting element. Mrs Matz asks whether the office will inform the applicant when documents are missing.

Mr Carcaci indicates that his group supports the bill because it can shorten the procedure.

The Secretary of State in his response once again pointed out the need for a new migration law. Through the many amendments, the Foreigners Act has now become a virtually unreadable and extremely complex legal text. He argues that this is not a good thing, neither for the government nor for the foreigners.

For this reason, the federal government in the government agreement ambitions to create a new migration law, which was the ambition of the previous federal government. However, the two-and-a-half-year rule period proved too short to ⁇ that goal. It is a huge task. Consequently, the Secretary of State gives priority to a four-year working period. By 2018, he wants a concrete outcome on the table, which can be discussed in Parliament.

A lot of work is already going on behind the scenes. According to the Secretary of State, a working group is working very hard and efficiently on the project.

This comprehensive exercise does not, of course, prevent legislative work from being carried out in the interim period. The codification of course does not hostage the ongoing work of the federal government on certain issues related to asylum and migration.

Furthermore, the Secretary of State disagrees with the assertion that the legal protection of the person concerned will decline. With the present bill, the stay in the closed reception will be significantly shorter. The case is already registered on the role in a new arrangement, so that in case a faster treatment is possible. After registration, documents can still be added to the file. Furthermore, where appropriate, the office will still write a letter to the lawyer of the person concerned indicating the elements that are missing in the file.

The legal protection is therefore ⁇ ined. At the same time, the procedure is accelerated and therefore the stay is also shortened.

The concrete time gain of the new scheme is eight to nine days. Given the fact that a stay in a closed center takes an average of 30.4 days, this is a substantial reduction.

During the period from July 2014 to May 2015, an average of twenty lawsuits are handled by the accelerated procedure each month. On average, there are 10 appeals on a first refusal of consideration and 2.2 appeals on a second refusal of consideration.

According to the Secretary of State, these are not very high figures, but therefore it is a relatively limited number of people who reside in a closed centre and submit another asylum application.

Then the discussion started, followed by the voting.

Article 1 was unanimously adopted.

Chapter 2 deals with the accelerated procedure in full jurisdiction before the Council for Foreign Disputes (RvV).

Article 2 aims to amend Article 39/57-1, paragraph 3 of the Act of 15 December 1980 on entry into the territory, residence, establishment and removal of foreigners. No comments have been made. The proposal was adopted with 11 votes in favour and 3 abstentions.

Article 3 aims to amend Article 39/77, § 1, paragraph 1 of the same Foreigners Act. Mr Kir has submitted an amendment. 1 in, which aims to replace Article 3 in order to supplement Article 39/77, § 1, paragraph four, of the Foreigners Act. This amendment aims to oblige the Office of the Council for Foreign Disputes to indicate in the invitation the formal requirements referred to in Article 39/69 § 1 (2) which must be met before the conclusion of the discussions. This amendment follows the intention of the Government but ensures that the applicant is notified in advance. The Secretary of State stresses that he cannot take a position on this amendment unless he has additional information. The Amendment No. 1 shall be withdrawn by the applicant during the discussion. Article 3 was then adopted by 10 votes in favour and 4 abstentions.

Article 4 aims to amend Article 39/77/1, § 1, paragraphs 1 and 2 of the Foreigners Act.

Mr Kir submitted amendment no. 2 in that regard aims to replace Article 4 in order to supplement Article 39/77/1, § 1, fourth paragraph of the Foreigners Act. This amendment is intended to require the Office of the RvV to indicate in the invitation the formal requirements referred to in Article 39/69, § 1, second paragraph, which must be fulfilled before the conclusion of the debates. This amendment follows the intention of the Government, but at the same time guarantees a prior notification to the applicant. Here too, the Secretary of State said that he needed additional information in order to take a position on this amendment. Amendment No. 2 was repealed and Article 4 was adopted with 10 votes in favour and 4 abstentions.

I will then come to chapter 3 on the cancellation procedure at the Council for Foreign Disputes. Article 5 aims to amend Article 39/81 of the Foreigners Act. No comments were made and the article was adopted with 11 votes for and 4 abstentions.

Chapter 4 is about the scope. Articles 6 and 7 define the scope of the draft law. No comments were made and both articles were adopted with 11 votes for and 3 abstentions.

Article 8 of Chapter 5 deals with the entry into force. That article establishes 1 January 2016 as the date of entry into force of the proposed law. No comments are made on that article and it is adopted with 11 votes for and 3 abstentions.

The entire draft law, including the legislative improvements, is adopted with 11 votes in favour and 3 abstentions.

At the beginning of this plenary session two amendments were submitted, namely the amendments No. 3 and No. 4 by Mr. Kir. The Chairman of the Chamber therefore referred the draft law to the Committee on Internal Affairs. This committee has just met, that is, on 10 December. Mr Kir explained his amendments. The Secretary of State explained the position of the Council for Foreign Disputes.

Amendments 3 and 4 were subsequently rejected by 11 votes against 4 and 2 abstentions. The voting of the articles that took place on 9 December was confirmed. The entire bill was adopted with 13 votes against 3 and 1 abstinence.

I hope that this has provided sufficient report on the present draft law.

Mrs Smeyers, thank you for your extensive oral report.

Mr. Speaker, I would like to thank Mrs. Smeyers who was ⁇ comprehensive. I would like to reiterate some of my remarks regarding the fact that Mr. Francken had pledged to come up with codification, with this will to gather all the laws concerning the stay and removal of foreigners. Thank you for giving me a timetable. At the beginning of the legislature, he had a short- and medium-term ambition. He probably realized that the work is titanic. He gives us an appointment in 2018. We will closely follow the development of this working group which aims to clarify the law on foreigners and to gather all the elements.

I regret the lack of a comprehensive approach to this policy and that we are working in a segmented way. In this context, I will not repeat the debate we had in the committee and which took place in a good spirit.

I would like to reiterate our willingness, at the level of the PS Group, to resubmit the two amendments. I will justify the decision of our group. For us, these are technical amendments that aim to balance the approach of the government, not to oppose it. Yes, we need faster procedures. This is in the interest, first and foremost, of the applicants, but also in the interest of our government administration. But this speed of proceedings should not be done at the expense of the rights of the applicants, or those of a justice that must be well performed. For this reason, our amendments, which simply aim to list the procedures that may be completed before the end of the debate in the call for the hearing, are indispensable.

This is, for us, a formal approach that will avoid refusals based on purely formal situations. This will also make the work of judges more serene when they find that a formal condition is not fulfilled before the end of the debates.