In accordance with the federal government agreement from 30 September 2020, a draft law was presented today in the House of Representatives, aiming to make the following changes, inter alia:

• An obligation to cooperate would be introduced for foreigners who are not, or no longer, admitted or authorized to reside on the territory. The new article 74/22 of the Aliens Act would establish a list of actions that could be expected from foreigners, in particular to cooperate in the identification process, to undertake the necessary steps to obtain the required travel documents, to cooperate in organizing their return, to cooperate with necessary medical examinations and to provide medical certificates …
   
• The individual follow up of foreigners who have been ordered to leave the territory would be enshrined in law. The ICAM coaches which are responsible for this follow up would further strengthen their cooperation with Fedasil and with local administrations, including public welfare centers, and organizations that know the target group such as organizations helping the homeless.
   
• Preventive measures and less coercive retention measures would be grouped together in the law. For example, according to the draft law, the retention of travel documents can be used if preparations for voluntary return are already very advanced, for example when the trip has been booked and the coach believes that the retention of documents will increase the chances that the foreigner actually presents himself at the moment where he must begin his trip.
   
• The concept of “absconding” would be further elaborated in line with (i) the interpretation by the Court of Justice of the European Union, following the judgment rendered on 19 March 2019 in the context of the Jawo affair vs. Bundesrepublik Deutschland and (ii) the case law of the Foreigner Litigation Council which determined the conditions in which it could be presumed that the foreigner absconded.
   
• The decisions taken by the Immigration Office aiming to extend the time limit to transfer an applicant towards the Member State responsible for the examination of the application, in accordance with Article 29 paragraph 2 of the Dublin Regulation, would have a legal basis.
   
• The list of competent escorts would be expanded. The new Article 28/1 paragraph 2 would designate as escorts (i) members of the Federal Police, (ii) members of the Immigration Office and (iii) members of permanent Frontex contingent.
   
• The current Article 75 of the Aliens Act, which provides for a prison sentence for foreigners who irregularly entered or stayed on the territory, would be brought into compliance with the jurisprudence of the Court of Justice. In fact the Court considered that the Return Directive must be interpreted as objecting to a prison sentence being ordered for this reason alone.
   
• The ban on retaining families with minor children in closed centers would be legally anchored. However, maintaining families with minor children in open family units remains possible.
   
• The assignment of applicants towards “Dublin places” and “open return places” would have a legal basis. In fact such decisions taken by Fedasil are the most contested before the courts.

The draft law will be further discussed. For more detailed information, please read the draft law from 29 September 2023 here.