BAKGRUNN (fra europaparlaments- og rådsforordningen)

(1) The Union, in constituting an area of freedom, security and justice, should ensure the absence of internal border controls for persons, frame a common policy on asylum and migration, external border control and returns, and prevent unauthorised movements between Member States, based on solidarity and the fair sharing of responsibility between Member States, which is also fair towards third-country nationals and stateless persons and in full respect of fundamental rights. 

(2) The objective of this Regulation is to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a return border procedure. That procedure should apply to third-country nationals and stateless persons whose application has been rejected in the context of the asylum border procedure provided for in Regulation (EU) 2024/1348 of the European Parliament and of the Council (the ‘asylum border procedure’). 

(3) For those Member States not bound by Regulation (EU) 2024/1348, references in this Regulation to provisions in Regulation (EU) 2024/1348 should be understood as references to equivalent provisions which they might have introduced in their national law. 

(4) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party. 

(5) The best interests of the child should be a primary consideration for Member States when applying the provisions of this Regulation that possibly affect minors. 

(6) Many applications for international protection are made at the external border or in a transit zone of a Member State, including by persons apprehended in connection with an unauthorised crossing of the external border, that is to say at the very time of the irregular crossing of the external border or near that external border after it has been crossed, or by persons disembarked following a search and rescue operation. In order to conduct identification, security and health screening at the external border and to direct the third-country nationals and stateless persons concerned to the relevant procedures, a screening is necessary. After the screening, third-country nationals and stateless persons should be channelled to the appropriate asylum or return procedure, or refused entry. A pre-entry phase consisting of screening and border procedures for asylum, as applicable, and return should therefore be established. There should be seamless and efficient links between all stages of the relevant procedures for all irregular arrivals. 

(7) Entry into the territory is not authorised where an applicant has no right to remain, where he or she has not requested to be allowed to remain for the purposes of the appeal procedure provided for in Regulation (EU) 2024/1348, or where a court or tribunal has decided that he or she should not be allowed to remain pending the outcome of such an appeal procedure. In such cases, to ensure continuity between the asylum procedure and the return procedure, the return procedure should also be carried out in the context of a border procedure for a period not exceeding 12 weeks. That period should be counted starting from the time the applicant, third-country national or stateless person no longer has a right to remain or is no longer allowed to remain. 

(8) To guarantee the equal treatment of all third-country nationals and stateless persons whose application has been rejected in the context of the border procedure, where a Member State has decided not to apply the provisions of Directive 2008/115/EC of the European Parliament and of the Council pursuant to the relevant derogation set out therein to third-country nationals and stateless persons and does not issue a return decision to the third-country national concerned, the treatment and level of protection of the applicant, third-country national or stateless person concerned should be in accordance with the provision of Directive 2008/115/EC on more favourable provisions with regard to third-country nationals excluded from the scope of that Directive and be equivalent to those applicable to persons subject to a return decision. 

(9) When applying the return border procedure, certain provisions of Directive 2008/115/EC should apply, as they regulate elements of the return border procedure that are not set out in this Regulation, in particular those on definitions, more favourable provisions, non-refoulement, the best interests of the child, family life and state of health, the risk of absconding, the obligation to cooperate, the period for voluntary departure, the return decision, removal, the postponement of removal, the return and removal of unaccompanied minors, entry bans, safeguards pending return, detention, the conditions of detention, the detention of minors and families, and emergency situations. To reduce the risk of unauthorised entry and movement of illegally staying third-country nationals and stateless persons subject to the return border procedure, a period for voluntary departure should be granted. That period for voluntary departure should be granted only upon request and it should neither exceed 15 days nor confer a right to enter the territory of the Member State concerned. Persons concerned should surrender any valid travel document in their possession to the competent authorities for as long as necessary to prevent their absconding. The provisions on return set out in this Regulation are without prejudice to the discretionary possibility for Member States at any time to decide to grant an autonomous residence permit or other authorisation granting a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. 

(10) Where the illegally staying third-country national or stateless person does not return, or is not removed, within the maximum period of the return border procedure, the return procedure should continue as provided for in Directive 2008/115/EC. 

(11) Where an applicant, third-country national or stateless person who was detained during the asylum border procedure provided for in Regulation (EU) 2024/1348 no longer has a right to remain and has not been allowed to remain, Member States should be able to continue the detention for the purpose of preventing entry into the territory and carrying out a return procedure, in compliance with the guarantees and conditions for detention laid down in Directive 2008/115/EC. It should also be possible to detain an applicant, third-country national or stateless person who was not detained during such an asylum border procedure, who no longer has a right to remain and who has not been allowed to remain, if there is a risk of absconding, if he or she avoids or hampers return, or if he or she poses a risk to public policy, public security or national security. That detention should be for as short a period as possible and should not exceed the maximum duration of the return border procedure. When the illegally staying third-country national or stateless person does not return, or is not removed, within that period and the return border procedure ceases to apply, Directive 2008/115/EC should apply. The maximum period of detention set out in that Directive should include the period of detention applied during the return border procedure.

(12) The return border procedure should facilitate, in a situation of crisis as defined in Regulation (EU) 2024/1359 of the European Parliament and of the Council, the return of irregularly staying third-country nationals or stateless persons whose application has been rejected in the context of a crisis in the asylum border procedure, who have no right to remain and who are not allowed to remain, by providing the competent national authorities with the necessary tools and a sufficient timeframe to carry out return procedures with due diligence. To be able to respond to situations of crisis in an effective manner, it should also be possible to apply the return border procedure in a situation of crisis to applicants, third-country nationals and stateless persons subject to the return border procedure whose application has been rejected before the adoption of a Council Implementing Decision as provided for in Regulation (EU) 2024/1359 declaring that a Member State is confronted with a situation of crisis, and who have no right to remain and who are not allowed to remain after the adoption of such a Decision. 

(13) In accordance with Article 72 of the Treaty on the Functioning of the European Union (TFEU), this Regulation does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. 

(14) With a view to ensuring a coherent implementation of the provisions on the return border procedure set out in this Regulation by the time it applies, implementation plans at Union and national levels that identify gaps and operational steps for each Member State should be developed and implemented. 

(15) The application of this Regulation should be evaluated at regular intervals. 

(16) The policy objective of the Instrument for Financial Support for Border Management and Visa Policy (BMVI), established, as part of the Integrated Border Management Fund, by Regulation (EU) 2021/1148 of the European Parliament and of the Council, is to ensure strong and effective European integrated border management at the external borders, including by preventing and detecting illegal immigration and effectively managing migratory flows. Allowing the financing of support under that Instrument for solidarity actions within the context of Regulation (EU) 2024/1351 of the European Parliament and of the Council would contribute to reaching the objectives of Regulation (EU) 2021/1148. Regulation (EU) 2021/1148 should therefore be amended. 

(17) It should be possible to mobilise the resources of the BMVI and of other relevant Union funds (the ‘Funds’) to support Member States in their efforts to apply Regulation (EU) 2024/1351, in accordance with the rules governing the use of the Funds and without prejudice to other priorities supported by the Funds. In that context, Member States should be able to make use of the allocations under their respective programmes, including the amounts made available following the mid-term review. It should be possible to make additional support under the relevant Thematic Facilities available, in particular to those Member States which might need to increase their capacities at the borders. 

(18) Regulation (EU) 2021/1148 should be amended to guarantee a full contribution by the Union budget to the total eligible expenditure of solidarity actions, as well as to introduce specific reporting requirements in relation to those actions, as part of the existing reporting obligations on the implementation of the Funds. That Regulation should also be amended to allow the Member States to provide financial contributions to the BMVI in the form of external assigned revenues. 

(19) Since the objectives of this Regulation, namely to establish a return border procedure, to provide for specific temporary rules in order to ensure that Member States are able to address situations of crisis and to allow the financing of support under Regulation (EU) 2021/1148 for solidarity actions within the context of Regulation (EU) 2024/1351, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. 

(20) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law. 

(21) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC; Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application. 

(22) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC. 

(23) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC. 

(24) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU, 

(25) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the ‘Charter’). In particular, this Regulation seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 8, 18, 19, 21, 23, 24, and 47 of the Charter,