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REPORT     ***I
PDF 696kWORD 111k
10 November 2017
PE 606.233v02-00 A8-0348/2017

on the proposal for a regulation of the European Parliament and of the Council on the use of the Schengen Information System for the return of illegally staying third-country nationals

(COM(2016)0881 – C8-0532/2016 – 2016/0407(COD))

Committee on Civil Liberties, Justice and Home Affairs

Rapporteur: Jeroen Lenaers

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Foreign Affairs
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on the use of the Schengen Information System for the return of illegally staying third-country nationals

(COM(2016)0881 – C8-0532/2016 – 2016/0407(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0881),

–  having regard to Article 294(2) and Articles 79(2)(c) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0532/2016),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Foreign Affairs (A8-0348/2017),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a regulation

Recital 3 a (new)

Text proposed by the Commission

Amendment

 

(3a)  When implementing this Regulation, Member States should take due account of the best interests of the child, family life, the state of health of the third-country national concerned and whether the third-country national is a vulnerable person. In any event, any measures to return third-country nationals should fully respect the Charter of Fundamental Rights of the European Union and the principle of non-refoulement.

Amendment    2

Proposal for a regulation

Recital 7

Text proposed by the Commission

Amendment

(7)  To ensure the effectiveness of return and increase the added value of alerts on return, Member States should enter alerts in SIS in relation to all return decisions they issue to illegally staying third-country nationals in accordance with provisions respecting Directive 2008/115/EC. For this purpose, Member States should enter an alert in SIS also when decisions imposing or stating an obligation to return are issued in the situations described in Article 2(2) of that Directive, notably to third-country nationals who are subject to a refusal of entry in accordance with the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State, and to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.

(7)  To ensure the effectiveness of return and increase the added value of alerts on return, Member States should enter alerts in SIS in relation to return decisions issued to illegally staying third-country nationals in accordance with provisions respecting Directive 2008/115/EC. For this purpose, Member States should enter an alert in SIS also when decisions imposing or stating an obligation to return are issued in the situations described in Article 2(2) of that Directive, notably to third-country nationals who are subject to a refusal of entry in accordance with the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State, and to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. For the purpose of this Regulation, in order to reduce the administrative burden, Member States should have the option not to enter data on third-country nationals subject to a return decision when those third-country nationals are placed in detention until removal.

Amendment    3

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8)  This Regulation should set out common rules for entering alerts related to return in SIS as soon as the underlying return decisions in accordance with provisions respecting Directive 2008/115/EC are issued. The alert should indicate whether a period for voluntary departure has been granted to the third-country national concerned, including whether such period has been extended taking into account the specific circumstances of the individual case, and whether the decision has been suspended or the removal has been postponed.

(8)  This Regulation should set out common rules for entering alerts related to return in SIS as soon as the underlying return decisions in accordance with provisions respecting Directive 2008/115/EC are issued. The alert should indicate whether a period for voluntary departure has been granted to the third-country national concerned, including whether such period has been extended taking into account the specific circumstances of the individual case, whether the third-country national has a right to appeal against the return decision, whether an appeal against the return decision is pending, and whether the decision has been suspended or the removal has been postponed.

Amendment    4

Proposal for a regulation

Recital 8 a (new)

Text proposed by the Commission

Amendment

 

(8a)  Member States should make an existing alert related to return in SIS temporarily unavailable upon the suspension or postponement of the enforcement of the return decision issued in accordance with provisions respecting Directive 2008/115/EC or where an appeal has been lodged against a return decision which may lead to the suspension of its enforcement.

Amendment    5

Proposal for a regulation

Recital 9

Text proposed by the Commission

Amendment

(9)  It is necessary to specify the categories of data that can be entered in SIS in respect of third-country nationals who are the subject of a return decision issued in accordance with provisions respecting Directive 2008/115/EC. Alerts on return should contain only those data that are required in order to identify the data subjects, to allow the competent authorities to take informed decisions without losing time and to ensure, where necessary, their protection in relation to persons who are armed, violent, have escaped or are involved in an activity as referred to in Articles 1, 2, 3 and 4 of Council Framework Decision 2002/475/JHA on combating terrorism26. Furthermore, in order to facilitate identification and detect multiple identities, the alert should include also a reference to the personal identification document and a copy of such document, if available.

(9)  It is necessary to specify the categories of data that can be entered in SIS in respect of third-country nationals who are the subject of a return decision issued in accordance with provisions respecting Directive 2008/115/EC. Alerts on return should contain only those data that are required in order to identify the data subjects, to allow the competent authorities to take informed decisions without losing time and to ensure, where necessary, their protection in relation to persons who are armed, violent, have escaped or are involved in an activity as referred to in Directive (EU) 2017/541 of the European Parliament and of the Council26. Furthermore, in order to facilitate identification and detect multiple identities, the alert should include also a reference to the personal identification document and a copy of such document, if available.

__________________

__________________

26 Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ L 164, 22.6.2002, p. 3).

26 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ, L 88, 31.3.2017, p. 6).

Amendment    6

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10)  Each Member State should designate an authority responsible for the exchange of supplementary information in connection to alerts on return in order to ensure efficient and swift cooperation among the Member States.

(10)  Each Member State should designate a national authority that is fully operational 24 hours a day, 7 days a week, and responsible for the exchange of supplementary information on third-country nationals who are the subject of a return decision in order to ensure efficient and swift cooperation among the Member States. Member States should be able to designate their SIRENE Bureau as their national authority.

Amendment    7

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11)  Procedures should be established to enable Member States to verify that the obligation to return has been complied with and to confirm the departure of the third-country national concerned to the Member State that issued the alert on return. This information should contribute to a more comprehensive follow-up of the compliance with return decisions in accordance with provisions respecting Directive 2008/115/EC.

(11)  Procedures should be established to enable Member States to verify that the obligation to return has been complied with and to confirm the departure of or that a residence permit or other authorisation offering a right to stay has been granted to the third-country national concerned to the Member State that issued the alert on return. This information should contribute to a more comprehensive follow-up of the compliance with return decisions and of the rate of successful appeals against return decisions in accordance with provisions respecting Directive 2008/115/EC.

Amendment    8

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Alerts on return should be deleted as soon as the Member State or competent authority that issued the return decision in accordance with provisions respecting Directive 2008/115/EC has been informed that the return has taken place. Where a return decision is accompanied by an entry ban, the latter should be entered in SIS in accordance with Article 24(3) of Regulation (EU) 2018/xxx [border checks]. In such cases Member States should take all necessary measures to ensure that no time-gap exist between the moment in which the third-country national leaves the Schengen area and the activation of the alert on the entry ban in SIS.

(12)  Alerts on return should be automatically deleted as soon as the alert expires, in accordance with the review procedure. They should also be deleted as soon as the Member State or competent authority that issued the return decision in accordance with provisions respecting Directive 2008/115/EC has been informed that the return has taken place, or, where necessary, in accordance with the provisions on the compatibility of alerts. Where a return decision is accompanied by an entry ban, the latter should be entered in SIS in accordance with Article 24(3) of Regulation (EU) 2018/xxx [border checks]. In such cases Member States should take all necessary measures to ensure that no time-gap exist between the moment in which the third-country national leaves the Schengen area and the activation of the alert on the entry ban in SIS.

Amendment    9

Proposal for a regulation

Recital 12 a (new)

Text proposed by the Commission

Amendment

 

(12a)  When a return decision is accompanied by an entry ban, even if an alert on return is not entered in SIS, the issuing Member State should ensure that the alert takes effect in SIS when the third-country national concerned leaves the territory of the Member States.

Amendment    10

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13)  SIS should contain a mechanism for notifying the Member States about the non-compliance of third-country nationals with an obligation to return within a given period of voluntary departure. The mechanism should support the Member States in fulfilling their obligations in accordance with Article 8(1) of Directive 2008/115/EC with regard to third-country nationals who have not complied with an obligation to return.

(13)  SIS should contain a mechanism for notifying the Member States about the non-compliance of third-country nationals with an obligation to return within a given period of voluntary departure. The mechanism should support the Member States in fulfilling their obligations in accordance with Article 8(1) and Article 11 of Directive 2008/115/EC with regard to third-country nationals who have not complied with an obligation to return.

Amendment    11

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15)  Alerts should be kept in SIS only for the time required to fulfil the purposes for which they were entered. In accordance with Article 34 of Regulation (EU) 2018/xxx [border checks] the review period for alerts on third-country nationals is five years.

(15)  Alerts should be kept in SIS only for the time required to fulfil the purposes for which they were entered. In accordance with Article 34 of Regulation (EU) 2018/xxx [border checks] the review period for alerts on the return of third-country nationals is three years.

Amendment    12

Proposal for a regulation

Recital 21 a (new)

Text proposed by the Commission

Amendment

 

(21a)  This Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union.

Amendment    13

Proposal for a regulation

Recital 21 b (new)

Text proposed by the Commission

Amendment

 

21(b)  This Regulation is without prejudice to the obligations deriving from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967.

Amendment    14

Proposal for a regulation

Recital 28

Text proposed by the Commission

Amendment

(28)  The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on […],

(28)  The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 3 May 2017,

Amendment    15

Proposal for a regulation

Recital 28 a (new)

Text proposed by the Commission

Amendment

 

(28a)  No amendment or new provision in this Regulation should create unnecessary obstacles for Member States who will join or are in process of joining the Schengen area.

Amendment    16

Proposal for a regulation

Article 2 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  ‘removal’ means removal as defined in point 5 of Article 3 of Directive 2008/115/EC;

Amendment    17

Proposal for a regulation

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Data on third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be entered in SIS for the purpose of verifying that the obligation to return has been complied with and for supporting the enforcement of the decision. An alert shall be entered in SIS without delay when the return decision is issued in accordance with provisions respecting Directive 2008/115/EC.

1.  Data on third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be entered immediately in SIS for the purpose of verifying that the obligation to return has been complied with and for supporting the enforcement of the decision. An alert shall be entered in SIS without delay when the return decision is issued in accordance with provisions respecting Directive 2008/115/EC, and in accordance with the provisions on the compatibility of alerts laid down in Article 23a of Regulation (EU) 2018/xxx [border checks].

 

Member States may elect not to enter data on third-country nationals subject to a return decision issued in the circumstances referred to in Article 2(2)(a) of Directive 2008/115/EC when it concerns third-country nationals who are placed in detention until removal.

Amendment    18

Proposal for a regulation

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2.  The period for voluntary departure granted to third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be immediately recorded in the alert.

2.  The period for voluntary departure granted to third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be immediately recorded in the alert. Where this period is extended, the alert shall be immediately updated accordingly.

Amendment    19

Proposal for a regulation

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  The suspension and the postponement of the enforcement of the return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be immediately recorded in the alert.

3.  The issuing Member State shall make an alert in SIS on a return decision unavailable in the following circumstances:

 

(a)   where enforcement of the return decision has been postponed or suspended; or

 

(b)  where an appeal has been lodged against a return decision which may lead to the suspension of its enforcement.

 

In such circumstances, the alert shall be unavailable to end users. It shall be accessible only to the SIRENE Bureaux until the return decision is upheld or the decision is overturned. If the return decision is overturned the alert shall be deleted immediately.

Amendment    20

Proposal for a regulation

Article 4 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  any specific, objective, physical characteristics not subject to change;

deleted

Amendment    21

Proposal for a regulation

Article 4 – paragraph 1 – point h

Text proposed by the Commission

Amendment

(h)  sex;

(h)  gender;

Amendment    22

Proposal for a regulation

Article 4 – paragraph 1 – point j

Text proposed by the Commission

Amendment

(j)  whether the person concerned is armed, violent, has escaped or is involved in an activity as referred to in Articles 1, 2, 3 and 4 of Council Framework Decision 2002/475/JHA on combating terrorism;

(j)  whether the person concerned is armed, violent, has escaped or is involved in an activity as referred to in Articles 3 to 12 and 14 of Directive (EU) 2017/541;

Amendment    23

Proposal for a regulation

Article 4 – paragraph 1 – point u

Text proposed by the Commission

Amendment

(u)  dactylographic data;

(u)  fingerprint data;

Amendment    24

Proposal for a regulation

Article 4 – paragraph 1 – point x a (new)

Text proposed by the Commission

Amendment

 

(xa)  data referred to in points (a) to (d), (f) to (i), (p) to (s) and (v) of any other identification document(s) carried by the person.

Amendment    25

Proposal for a regulation

Article 4 – paragraph 1 – point x b (new)

Text proposed by the Commission

Amendment

 

(xb)  whether the return decision issued in accordance with provisions respecting Directive 2008/115/EC can be appealed;

Amendment    26

Proposal for a regulation

Article 4 – paragraph 1 – point x c (new)

Text proposed by the Commission

Amendment

 

(xc)  whether an appeal is pending against the return decision issued in accordance with provisions respecting Directive 2008/115/EC.

Amendment    27

Proposal for a regulation

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

An alert may not be entered without the data referred to in (a),(g),(k),(m),(n) and (w). When available, all other data listed above shall also be entered.

An alert may not be entered without the data referred to in points (a), (g), (k), (m), (n), (w) and at least either (t) or (u). For the purposes of identification with a high degree of accuracy, fingerprint data shall always be preferred over photographs and facial images. When available, all other data listed above shall also be entered.

Amendment    28

Proposal for a regulation

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

Each Member State shall designate an authority responsible for the exchange of supplementary information on third-country nationals subject to return in accordance with the provisions of the SIRENE Manual laid down in Article 8 of Regulation (EU) 2018/xxx [Border checks].

Each Member State shall designate a national authority that is fully operational 24 hours a day, 7 days a week, to ensure the exchange and availability of all supplementary information on third-country nationals who are the subject of a return decision in accordance with the provisions of the SIRENE Manual laid down in Article 8 of Regulation (EU) 2018/xxx [border checks]. Member States may designate their SIRENE Bureau as their national authority.

Amendment    29

Proposal for a regulation

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3.  The Member States shall provide on a monthly basis statistics to the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011 of the European Parliament and of the Council36 (‘the Agency’) on the number of confirmed returns, on whether the return was carried out in voluntary compliance with an obligation to return or was enforced, and on the third countries of destination. Those statistics shall not contain personal data.

3.  The Member States shall provide on a monthly basis statistics to the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011 of the European Parliament and of the Council36 (‘the Agency’) on the number of confirmed returns, on whether the return was carried out in voluntary compliance with an obligation to return or was enforced, and on the third countries of destination. Those statistics shall not contain personal data. The Agency shall compile the monthly statistics into an annual report which shall be published in accordance with Article 11.

__________________

__________________

36 Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 286, 1.11.2011, p.1).

36 Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 286, 1.11.2011, p.1).

Amendment    30

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  CS-SIS shall notify the Member States about their alerts on return for which the period for voluntary departure has expired.

1.  CS-SIS shall automatically notify the Member States about their alerts on return for which the period for voluntary departure has expired and for which the period for voluntary departure has not been extended or a residence permit or other authorisation offering a right to stay been issued to the third-country national concerned.

Amendment    31

Proposal for a regulation

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  Where a third-country national who is subject of an alert on return is identified by a competent authority and it has been ascertained by the same authority that the obligation to return has not been complied with, that authority shall immediately consult the issuing Member State through the exchange of supplementary information in order to determine without delay the action to be taken.

2.  Without prejudice to Article 6, where a third-country national who is subject of an alert on return is identified by a competent authority and it has been ascertained by the same authority that the obligation to return has not been complied with, that authority shall immediately consult the issuing Member State through the exchange of supplementary information in order to determine the action to be taken. The issuing Member State shall be obliged to communicate the preferred course of action without delay.

Amendment    32

Proposal for a regulation

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

1.  Where a Member State considers granting a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an alert on return entered by another Member State, the former shall first consult, through the exchange of supplementary information, the Member State that entered the alert. The Member State that entered the alert shall reply within seven days. If the Member State considering granting a residence permit or other authorisation offering a right to stay decides to grant it, the alert on return shall be deleted.

1.  Before a Member State formally decides to grant a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an alert on return entered by another Member State, the former shall first consult, through the exchange of supplementary information, the Member State that entered the alert. The Member State that entered the alert shall provide a reply within seven days. The final decision on whether to grant a residence permit or other authorisation offering a right to stay to a third-country national rests with the consulting Member State. If a residence permit or other authorisation offering a right to stay is granted the alert on return shall be deleted immediately.

Amendment    33

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2.  Where a Member State considers entering an alert for return concerning a third-country national who is the holder of a valid residence permit or other authorisation offering a right to stay issued by another Member State, it shall inform through the exchange of supplementary information the Member State that issued the permit in order to allow that Member State to decide whether there are reasons justifying its withdrawal. The Member State that issued the permit shall provide a definite reply within seven days.

2.  Before a Member State decides to enter an alert for return concerning a third-country national who is the holder of a valid residence permit or other authorisation offering a right to stay issued by another Member State, it shall inform through the exchange of supplementary information the Member State that issued the permit in order to allow that Member State to decide whether there are reasons justifying its withdrawal. The Member State that issued the permit shall provide a definite reply within seven days. If the Member State that issued the permit decides to maintain it, the alert on return shall not be entered.

Amendment    34

Proposal for a regulation

Article 8 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where a third-country national who is the subject of an alert on return is identified when entering through the external borders, the Member State that identified the third-country national concerned shall immediately inform, through the exchange of supplementary information, the issuing Member State in order to delete the alert.

4.  Where a third-country national who is the subject of an alert on return is identified when entering through the external borders, the Member State that identified the third-country national concerned shall inform the issuing Member State as soon as possible and in any event within 12 hours through the exchange of supplementary information in order to delete the alert.

Amendment    35

Proposal for a regulation

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Without prejudice to Articles 6 and 8, alerts on return shall be deleted when the decision upon which the alert was based has been withdrawn or annulled by the competent authority. Alerts on return shall also be deleted when the third-country national concerned can demonstrate that they have left the territory of the Member States in compliance with a return decision issued in accordance with provisions respecting Directive 2008/115/EC.

1.  Without prejudice to Articles 6 and 8, alerts on return shall be deleted as soon as the decision upon which the alert was based has been withdrawn or annulled by the competent authority. Alerts on return shall also be deleted when the third-country national has, or can later demonstrate that she or he has left the territory of the Member States in compliance with a return decision issued in accordance with provisions respecting Directive 2008/115/EC

Amendment    36

Proposal for a regulation

Article 9 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Alerts on return shall be deleted automatically as soon as they expire, in accordance with Article 34 of Regulation 2018/xxx [border checks] relating to the review period.

Amendment    37

Proposal for a regulation

Article 9 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  Alerts on return shall be deleted where necessary in accordance with the provisions on the compatibility of alerts laid down in Article 23a of Regulation 2018/xxx [border checks].

Amendment    38

Proposal for a regulation

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  Alerts on return entered in respect of a person who has acquired citizenship of a Member State or of any State whose nationals are beneficiaries of the right of free movement within the Union shall be deleted as soon as the issuing Member State becomes aware, or is informed pursuant to Article 39 of Regulation (EU) 2018/xxx [border checks], that the person in question has acquired such citizenship.

2.  Alerts on return entered in respect of a person who has acquired a residence permit, authorisation offering a right to stay or citizenship of a Member State or of any State whose nationals are beneficiaries of the right of free movement within the Union shall be deleted as soon as the issuing Member State becomes aware, or is informed pursuant to Article 39 of Regulation (EU) 2018/xxx [border checks], that the person in question has acquired such residence permit, other authorisation offering a right to stay or citizenship.

Amendment    39

Proposal for a regulation

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

Data processed in SIS and the related supplementary information pursuant to this Regulation may be transferred or made available to a third-country in accordance with Chapter V of Regulation (EU) 2016/679 with the authorisation of the issuing Member State, only for the purpose of identification of and issuance of an identification or travel document to an illegally staying-third country national in view of return.

Data processed in SIS and the related supplementary information exchanged pursuant to this Regulation may be transferred or made available to a third country in accordance with Chapter V of Regulation (EU) 2016/679 with the authorisation of the issuing Member State only when the following conditions are satisfied:

 

(a)   the data is transferred or made available solely for the purpose of identification of and issuance of an identification or travel document to an illegally staying third-country national in view of return;

 

(aa)  the third country explicitly agrees to use the data solely for the purpose for which they were provided, to respect that which is lawful and necessary for the purposes set out in point (a), and to delete that data where it is no longer justified to keep it; and

 

(b)   the third-country national concerned has been informed that his or her personal data and supplementary information will be shared with the authorities of a third country.

 

No information regarding the fact that an application for international protection has been made in a Member State shall be disclosed to an alleged actor of persecution or serious harm in compliance with Article 30 of Directive 2013/32/EU or where that country is also the applicant's country of origin.

 

Data processed in SIS and the related supplementary information exchanged pursuant to this Regulation shall not be made available to a third country where the return decision has been made unavailable in accordance with Article 3(3).

Amendment    40

Proposal for a regulation

Article 10 a (new)

 

Text proposed by the Commission

Amendment

 

Article 10 a

 

Non-refoulement, best interests of the child, family life and state of health

 

Member States shall implement this Regulation in full respect of fundamental rights and the principle of non-refoulement and shall always take into consideration the best interests of the child, family life, and the state of health or condition of vulnerability of individuals concerned.

Amendment    41

Proposal for a regulation

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

Without prejudice to the provisions on statistics in Article 54 of Regulation (EU) 2018/xxx [Border checks], the Agency shall produce daily, monthly and annual statistics, both in total number and per each Member State on the number of alerts on return entered in SIS, including on the data referred to in Article 4(x) of this Regulation, on the notifications referred to in Article 7(1) of this Regulation and the number of alerts on return deleted due to compliance with an obligation to return. The Agency shall produce monthly and annual statistics about the data provided by the Member States in accordance with Article 6(3) and Article 8(5) of this Regulation. Those statistics shall not contain personal data.

Without prejudice to the provisions on statistics in Article 54 of Regulation (EU) 2018/xxx [Border checks], the Agency shall produce daily, monthly and annual statistics, both in total number and per each Member State on the number of alerts on return entered in SIS, including on the data referred to in Article 4(x), (xb) and (xc) of this Regulation, on the notifications referred to in Article 7(1) of this Regulation and the number of alerts on return deleted due to compliance with an obligation to return. The Agency shall produce monthly and annual statistics about the data provided by the Member States in accordance with Article 6(3) and Article 8(5) of this Regulation. Those statistics shall not contain personal data.

Amendment    42

Proposal for a regulation

Article 11 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

All statistics shall be compiled by the Agency in an annual report which shall be published. The report shall be transmitted to the European Parliament, the Council and the Commission.

Amendment    43

Proposal for a regulation

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

As far as not established in this Regulation, the provisions on responsibilities of the Member States and the Agency, the entry and processing of alerts, the conditions to access and retention of alerts, data processing, data protection, liability and monitoring and statistics laid down in Articles 6 to 19, Article 20(3)-(4) as well as in Articles 21, 22, 28, 29(4) and 33 to 54 of Regulation (EU) 2018/ xxx [Border checks] shall apply to data entered and processed in SIS in accordance with this Regulation.

As far as not established in this Regulation, the provisions on responsibilities of the Member States and the Agency, the entry, processing, updating and compatibility of alerts, the conditions to access and retention of alerts, data processing, data protection, liability and monitoring and statistics laid down in Articles 3, 6 to 19, Article 20(3)-(4) as well as in Articles 21, 22, 23a, 28, 29(4) and 33 to 54 of Regulation (EU) 2018/ xxx [Border checks] shall apply to data entered and processed in SIS in accordance with this Regulation.


EXPLANATORY STATEMENT

The use of the Schengen Information System for information sharing on return decisions is another small but crucial step in a series of Union measures with the aim of improving the effectiveness of the return of illegally staying third-country nationals. Improving the effectiveness of the Union return policy is crucial in order to maintain public trust in the Union migration and asylum policy.

The rapporteur would like to stress that the Union return policy at the moment is far from effective. In 2015, the number of irregular migrants ordered to leave the European Union amounted to 533,395, while the total return rate was around 42%. Moreover, if return to Western Balkans is disregarded, the European Union return rate drops further to 27%.

This proposal will set up for the first time a Union-wide system for sharing information between Member States on return decisions and will therefore allow for monitoring whether third-country nationals subject to those decisions have left the territory of the Member States and implementation of Union wide return decisions, which should thereby increase the effectiveness of Union return policies.

The rapporteur is of the opinion that also for this Commission proposal on the use of the Schengen Information System on return, the Member States should use the infrastructure that is already there and is working well for the exchange of supplementary information. Therefore, the SIRENE Bureaux should be the authority responsible for the efficient and swift exchange of supplementary information in connection to alerts on return between Member States.


OPINION of the Committee on Foreign Affairs (26.7.2017)

for the Committee on Civil Liberties, Justice and Home Affairs

on the proposal for a regulation of the European Parliament and of the Council on the use of the Schengen Information System for the return of illegally staying third-country nationals

(COM(2016)0881 – C8-0532/2016 – 2016/0407(COD))

Rapporteur: Hilde Vautmans

AMENDMENTS

The Committee on Foreign Affairs calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  The return of third-country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member States, in full respect of fundamental rights and in particular the principle of non-refoulement, and in accordance with Directive 2008/115/EC of the European Parliament and of the Council, is an essential part of the comprehensive efforts to tackle irregular migration and increase the rate of return of irregular migrants.

(1)  The return of third-country nationals who do not fulfil or no longer fulfil the conditions for entry, stay or residence in the Member States, in full respect of fundamental rights and the principle of non-refoulement, codified by the Charter of Fundamental Rights of the European Union (Charter) and the 1951 Geneva Convention, and in accordance with Directive 2008/115/EC of the European Parliament and of the Council, is an essential part of the comprehensive efforts to tackle irregular migration and manage migration in close cooperation with third countries of origin or transit.

COMP IX

Amendment    2

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Member States should take all necessary measures to return illegally staying third-country nationals in an effective and proportionate manner, in accordance with the provisions of Directive 2008/115/EC.

(3)  Member States should take all necessary measures to return illegally staying third-country nationals in an effective and proportionate manner while fully respecting fundamental rights, in particular the principle of non-refoulement and the protection of migrants' human rights, in accordance with the provisions of Directive 2008/115/EC.

Amendment    3

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Alerts on return should be deleted as soon as the Member State or competent authority that issued the return decision in accordance with provisions respecting Directive 2008/115/EC has been informed that the return has taken place. Where a return decision is accompanied by an entry ban, the latter should be entered in SIS in accordance with Article 24(3) of Regulation (EU) 2018/xxx [border checks]. In such cases Member States should take all necessary measures to ensure that no time-gap exist between the moment in which the third-country national leaves the Schengen area and the activation of the alert on the entry ban in SIS.

(12)  Alerts on return should be deleted as soon as the Member State or competent authority that issued the return decision in accordance with provisions respecting Directive 2008/115/EC has been informed that the return has taken place. Where a return decision is accompanied by an entry ban, the latter should be entered in SIS in accordance with Article 24(3) of Regulation (EU) 2018/xxx [border checks]. In such cases Member States should take all necessary measures to ensure that no time-gap exist between the moment in which the third-country national leaves the external borders of a Member State and the activation of the alert on the entry ban in SIS.

Justification

The term Schengen area is inconsistent with the term used in Article 6.: "Where a third-country national, who is the subject of an alert on return, exits through the external border of the issuing Member State, the confirmation of return shall be communicated to the competent authority in accordance with national law"

Amendment    4

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16)  Data processed in SIS or transferred through the exchange of supplementary information may provide to the enforcing Member State information that is useful for the rapid identification and re-documentation of illegally staying third-country nationals, in view of their return to a third country. In individual cases, it should be possible to share such data and information with a third country for this purpose. Sharing of any personal data should be subject to clear conditions, should be carried out in accordance with the provisions of Regulation (EU) 2016/679 and be conducted with the agreement of the Member State that issued the alert.

(16)  Data processed in SIS or transferred through the exchange of supplementary information may provide to the enforcing Member State information that is useful for the rapid identification and re-documentation of illegally staying third-country nationals, in view of their return to a third country. In individual cases, it should be possible to share such data and information with a third country for this purpose. However, this should only occur after a final decision on return has been taken. Sharing of any personal data should be subject to clear conditions, should be carried out in accordance with the provisions of Regulation (EU) 2016/679, in particular Articles 6(1)(f), 8, 12(1) and 40(2)(g) in cases related to children, and be conducted with the agreement of the Member State that issued the alert.

Justification

No personal data should be transferred to a third country before the decision on a return, adopted pursuant to Directive 2008/115(EC), has become final and, therefore, not before possible remedy or appeal procedures have been exhausted or a related request from the applicant has been declared as being inadmissible.

Amendment    5

Proposal for a regulation

Recital 16 a (new)

 

Text proposed by the Commission

Amendment

(16a)  In cases related to children, the best interests of the child should be a primary consideration when applying this Regulation. When data pertaining to a child are inserted in SIS, they should be used only for purposes relating to the prevention, detection and investigation of missing children cases and for the protection of the child’s best interest, in accordance with the UN Convention on the Rights of the Child.

Amendment    6

Proposal for a regulation

Recital 16 b (new)

 

Text proposed by the Commission

Amendment

(16b)  All measures taken in relation to the SIS should comply with the Charter. Member States should apply guidelines, to be established and monitored jointly by the European Union Agency for Asylum and the European Union Agency for Fundamental Rights, for a common practice with regard to taking fingerprints and facial images of irregular third-country nationals that builds upon the checklist prepared by the European Union Agency for Fundamental Rights. At all times Member States should respect the dignity and physical integrity of the minor during the fingerprinting procedure and when capturing a facial image. Member States should not use coercion to compel the taking of fingerprints of minors.

Justification

In accordance with the UN Convention on the rights of the Child, children shall be treated with humanity and respect, in a manner which takes into account the needs of their age. Therefore, particular attention shall be paid to the specific situation of minors. The best interest of the child shall always be a primary consideration.

Amendment    7

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17)  National authorities responsible for return may differ significantly among Member States, and such authorities may also vary within a Member State depending on the reasons for illegal stay. Judicial authorities may also issue return decisions in accordance with provisions respecting Directive 2008/115/EC, for instance as result of appeals against a refusal of granting an authorisation or right to stay, or as a criminal sanction. All national authorities in charge of issuing and enforcing return decisions in accordance with Directive 2008/115/EC should be entitled to access SIS in order to enter, update, delete and search alerts on return.

(17)  National authorities responsible for return may differ significantly among Member States, and such authorities may also vary within a Member State depending on the reasons for illegal stay. Furthermore, different national lists of "safe third countries" exist. Judicial authorities may also issue return decisions in accordance with provisions respecting Directive 2008/115/EC, for instance as result of appeals against a refusal of granting an authorisation or right to stay, or as a criminal sanction. All national authorities in charge of issuing and enforcing return decisions in accordance with Directive 2008/115/EC should be entitled to access SIS in order to enter, update, delete and search alerts on return.

Amendment    8

Proposal for a regulation

Recital 28 a (new)

Text proposed by the Commission

Amendment

 

(28a)  No amendment or new provision in this Regulation should create unnecessary obstacles for Member States who will join or are in process of joining the Schengen area.

Amendment    9

Proposal for a regulation

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Data on third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be entered in SIS for the purpose of verifying that the obligation to return has been complied with and for supporting the enforcement of the decision. An alert shall be entered in SIS without delay when the return decision is issued in accordance with provisions respecting Directive 2008/115/EC.

1.  Data on third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC shall be entered in SIS immediately after the decision becomes effective under the national legislation of the respective Member State for the purpose of verifying that the obligation to return has been complied with and for supporting the enforcement of the decision. An alert shall be entered in SIS without delay when the return decision is issued in accordance with provisions respecting Directive 2008/115/EC.

Amendment    10

Proposal for a regulation

Article 4 – paragraph 1 – point p

Text proposed by the Commission

Amendment

(p)  the category of the person’s identification document;

(p)  the category of the person’s current or past identification documents, or other documents used so far under his or her aliases;

Amendment    11

Proposal for a regulation

Article 4 – paragraph 1 – point r

Text proposed by the Commission

Amendment

(r)  the number(s) of the person’s identification document;

(r)  the number(s) of the person’s current or past identification documents;

Amendment    12

Proposal for a regulation

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Without prejudice to Articles 6 and 8, alerts on return shall be deleted when the decision upon which the alert was based has been withdrawn or annulled by the competent authority. Alerts on return shall also be deleted when the third-country national concerned can demonstrate that they have left the territory of the Member States in compliance with a return decision issued in accordance with provisions respecting Directive 2008/115/EC.

1.  Without prejudice to Articles 6 and 8, alerts on return shall be immediately deleted when the decision upon which the alert was based has been withdrawn or annulled by the competent authority. Alerts on return shall also be deleted when the third-country national concerned can demonstrate that they have left the territory of the Member States in compliance with a return decision issued in accordance with provisions respecting Directive 2008/115/EC.

Amendment    13

Proposal for a regulation

Article 10 – paragraph 1

 

Text proposed by the Commission

Amendment

Data processed in SIS and the related supplementary information pursuant to this Regulation may be transferred or made available to a third-country in accordance with Chapter V of Regulation (EU) 2016/679 with the authorisation of the issuing Member State, only for the purpose of identification of and issuance of an identification or travel document to an illegally staying-third country national in view of return.

Data processed in SIS and the related supplementary information pursuant to this Regulation may be transferred or made available to a third-country in accordance with Chapter V of Regulation (EU) 2016/679 with the authorisation of the issuing Member State, only for the purpose of identification of and issuance of an identification or travel document to an illegally staying-third country national in view of return. However, this shall concern individual cases and only occur after a final decision on return has been taken in full compliance with the principle of non-refoulement. In particular, it must be confirmed that the country in question ensures an adequate level of protection, taking into account its respect for the rule of law and human rights, the existence and effective functioning of independent supervisory authorities and the country’s international commitments. Prior to any transfer of information to a third country, the competent authorities must confirm that the life and freedom of a returnee will not be threatened on account of his or her race, religion, nationality, affiliation to a particular social group or political opinion. The data and the related supplementary information shall not be transferred if such a transfer could put the person to whom they relate in danger.

Amendment    14

Proposal for a regulation

Article 10 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Data related to any previous asylum application made by or immigration status granted to a returnee within a Member State shall not be transferred to a third country for the purposes of this Regulation.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Use of the Schengen Information System for the return of illegally staying third-country nationals

References

COM(2016)0881 – C8-0532/2016 – 2016/0407(COD)

Committee responsible

       Date announced in plenary

LIBE

6.4.2017

 

 

 

Opinion by

       Date announced in plenary

AFET

6.4.2017

Rapporteur

       Date appointed

Hilde Vautmans

15.5.2017

Date adopted

11.7.2017

 

 

 

Result of final vote

+:

–:

0:

26

13

21

Members present for the final vote

Lars Adaktusson, Michèle Alliot-Marie, Francisco Assis, Petras Auštrevičius, Bas Belder, Mario Borghezio, Victor Boştinaru, Elmar Brok, Klaus Buchner, James Carver, Fabio Massimo Castaldo, Lorenzo Cesa, Aymeric Chauprade, Javier Couso Permuy, Andi Cristea, Arnaud Danjean, Knut Fleckenstein, Eugen Freund, Michael Gahler, Iveta Grigule, Sandra Kalniete, Tunne Kelam, Janusz Korwin-Mikke, Andrey Kovatchev, Eduard Kukan, Ryszard Antoni Legutko, Arne Lietz, Barbara Lochbihler, Sabine Lösing, Andrejs Mamikins, Alex Mayer, David McAllister, Tamás Meszerics, Francisco José Millán Mon, Javier Nart, Demetris Papadakis, Ioan Mircea Paşcu, Alojz Peterle, Tonino Picula, Cristian Dan Preda, Jozo Radoš, Sofia Sakorafa, Jordi Solé, Jaromír Štětina, Charles Tannock, László Tőkés, Miguel Urbán Crespo, Ivo Vajgl, Elena Valenciano, Hilde Vautmans, Boris Zala

Substitutes present for the final vote

Brando Benifei, Luis de Grandes Pascual, Eleni Theocharous, Ernest Urtasun, Bodil Valero, Paavo Väyrynen, Marie-Christine Vergiat, Željana Zovko

Substitutes under Rule 200(2) present for the final vote

Frank Engel

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

26

+

ALDE

Petras Auštrevičius, Iveta Grigule, Javier Nart, Jozo Radoš, Ivo Vajgl, Hilde Vautmans, Paavo Väyrynen

ECR

Bas Belder, Ryszard Antoni Legutko, Charles Tannock, Eleni Theocharous

EFDD

Fabio Massimo Castaldo

S&D

Francisco Assis, Brando Benifei, Victor Boştinaru, Andi Cristea, Knut Fleckenstein, Eugen Freund, Arne Lietz, Andrejs Mamikins, Alex Mayer, Demetris Papadakis, Ioan Mircea Paşcu, Tonino Picula, Elena Valenciano, Boris Zala

13

-

EFDD

James Carver

GUE/NGL

Javier Couso Permuy, Sabine Lösing, Sofia Sakorafa, Miguel Urbán Crespo, Marie-Christine Vergiat

NI

Janusz Korwin-Mikke

Verts/ALE

Barbara Lochbihler, Tamás Meszerics, Jordi Solé, Ernest Urtasun, Bodil Valero

21

0

NI

Aymeric Chauprade

PPE

Lars Adaktusson, Michèle Alliot-Marie, Elmar Brok, Lorenzo Cesa, Arnaud Danjean, Frank Engel, Michael Gahler, Sandra Kalniete, Tunne Kelam, Andrey Kovatchev, Eduard Kukan, David McAllister, Francisco José Millán Mon, Alojz Peterle, Cristian Dan Preda, Jaromír Štětina, László Tőkés, Željana Zovko, Luis de Grandes Pascual

Verts/ALE

Klaus Buchner

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Use of the Schengen Information System for the return of illegally staying third-country nationals

References

COM(2016)0881 – C8-0532/2016 – 2016/0407(COD)

Date submitted to Parliament

22.12.2016

 

 

 

Committee responsible

       Date announced in plenary

LIBE

6.4.2017

 

 

 

Committees asked for opinions

       Date announced in plenary

AFET

6.4.2017

DEVE

6.4.2017

BUDG

6.4.2017

 

Not delivering opinions

       Date of decision

DEVE

25.1.2017

BUDG

12.1.2017

 

 

Rapporteurs

       Date appointed

Jeroen Lenaers

9.3.2017

 

 

 

Discussed in committee

30.3.2017

10.7.2017

28.9.2017

6.11.2017

Date adopted

6.11.2017

 

 

 

Result of final vote

+:

–:

0:

40

5

8

Members present for the final vote

Asim Ahmedov Ademov, Gerard Batten, Monika Beňová, Malin Björk, Michał Boni, Daniel Dalton, Rachida Dati, Raymond Finch, Kinga Gál, Ana Gomes, Sylvie Guillaume, Monika Hohlmeier, Filiz Hyusmenova, Sophia in ‘t Veld, Dietmar Köster, Barbara Kudrycka, Cécile Kashetu Kyenge, Juan Fernando López Aguilar, Monica Macovei, Roberta Metsola, Claude Moraes, Péter Niedermüller, Judith Sargentini, Birgit Sippel, Csaba Sógor, Helga Stevens, Traian Ungureanu, Marie-Christine Vergiat, Udo Voigt, Josef Weidenholzer, Cecilia Wikström, Kristina Winberg, Auke Zijlstra

Substitutes present for the final vote

Carlos Coelho, Anna Maria Corazza Bildt, Pál Csáky, Miriam Dalli, Gérard Deprez, Marek Jurek, Jeroen Lenaers, Elly Schlein, Barbara Spinelli, Axel Voss

Substitutes under Rule 200(2) present for the final vote

Max Andersson, André Elissen, György Hölvényi, Karin Kadenbach, Peter Kouroumbashev, Julia Reda, Sofia Ribeiro, Bart Staes, Julie Ward, Wim van de Camp

Date tabled

10.11.2017


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

40

+

ALDE

Gérard Deprez, Filiz Hyusmenova, Sophia in 't Veld, Cecilia Wikström,

ECR

Monica Macovei, Helga Stevens

EFDD

Kristina Winberg

NI

Udo Voigt

PPE

Asim Ahmedov Ademov, Michał Boni, Carlos Coelho, Anna Maria Corazza Bildt, Pál Csáky, Rachida Dati, Kinga Gál, Monika Hohlmeier, György Hölvényi, Barbara Kudrycka, Jeroen Lenaers, Roberta Metsola, Sofia Ribeiro, Csaba Sógor, Traian Ungureanu, Axel Voss, Wim van de Camp

S&d

Monika Beňová, Miriam Dalli, Ana Gomes, Sylvie Guillaume, Karin Kadenbach, Peter Kouroumbashev, Cécile Kashetu Kyenge, Dietmar Köster, Juan Fernando López Aguilar, Claude Moraes, Péter Niedermüller, Elly Schlein, Birgit Sippel, Julie Ward, Josef Weidenholzer

5

-

ENF

André Elissen, Auke Zijlstra

GUE/NGL

Malin Björk, Barbara Spinelli, Marie-Christine Vergiat

8

0

ECR

Daniel Dalton, Marek Jurek

EFDD

Gerard Batten, Raymond Finch

VERTS/ALE

Max Andersson, Julia Reda, Judith Sargentini, Bart Staes

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 10 November 2017Legal notice