emn fr ncp ad-hoc query on verification procedure of the...

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AD-HOC QUERY ON VERIFICATION PROCEDURE OF THE REGULARITY OF A THIRD-COUNTRY NATIONAL

Requested by FR NCP on 6th August 2012

Compilation produced on 23rd October 2012

Responses from Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg,

Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom (19 in Total)

Disclaimer: The following responses have been provided primarily for the purpose of information exchange among EMN NCPs in the framework of the EMN. The contributing EMN NCPs have provided, to the best of their knowledge, information that is up-to-date, objective and reliable. Note, however, that the information provided does not necessarily represent the official policy of an EMN NCPs' Member State.

1. Background Information The Directorate of Immigration of the French Ministry of Interior (Removal department) would be interested in gathering information on how Member States verify the regularity of the situation of a third country national (TCN) who is unable to prove the legality of his movement and stay on the territory of a Member State (MS).

EMN Ad-Hoc Query: Verification procedure of the regularity of a TCN


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2. Responses

Wider Dissemination?1

I - Verification procedure of the regularity of the situation of a third country national (TCN) who is unable to prove the legality of his movement and stay on the territory of a Member State. 1) In your Member State’s law, is there a distinction between identity verification and verification of the regularity of the situation of a TCN? Detail the procedure by which the authorities verify the legality of the situation of a TCN (fingerprinting, photographs, maximum duration and place of detention, rights of detainees, etc.) and indicate the reference text for identity verification, if any. 2) Is the procedure (to check the situation of a TCN who is unable to prove the legality of his movement and stay) administrative, judicial or administrative and judicial? How is control of the legality of the procedure organized? 3) Where the irregularity of the situation of the TCN is recognized, does the procedure that follows vary depending on whether the person was, prior to this procedure, subject of a removal order or not? Similarly, does the procedure that follows vary depending on whether the person has illegally crossed the border or not? II - Illegal stay Under what circumstances is illegal stay a criminal offence? Detail the penalties for each case. III - Illegal crossing of the border 1) Is the illegal crossing of the border a criminal offense? 2) What are the penalties for a person who illegally crossed the border?

Austria Yes

Belgium Yes I. 1) According to article 81 of the aliens act several authorities (federal police, local police, immigration office, social security service,…) are responsible for the enforcement of the aliens act and the penal code. In this context they may execute an identity check. After the identification, The immigration office can conduct an investigation of the residence situation. For the identification process biometric data can be taken and verified. In relation to the taking of biometric data, article 30bis of the aliens act provides that biometric data should be construed as the taking of fingerprints and photographs. Article 30bis §2 specifies who may be asked for biometric data. One of the categories, in respect of whom the act authorises the taking of biometric data, are non-nationals who are asked to leave the country or who have been served with an order to leave the territory. The aliens act furthermore specifies what these biometric data may be used for. Establishing and/or checking the identity of a non-national is one of the reasons the act provides for. Article 7 and article 74/6 of the aliens act specify the detention periods non-nationals due to be deported may be subjected to and state that steps must be taken to deport the non-national from the territory within seven days of the person having been detained. In practice, this means that the identification procedure must be set in motion within the first seven days of a person’s detention.

1 A default "Yes" is given for your response to be circulated further (e.g. to other EMN NCPs and their national network members). A "No" should be added here if you do not wish

your response to be disseminated beyond other EMN NCPs. In case of "No" and wider dissemination beyond other EMN NCPs, then for the Compilation for Wider Dissemination the response should be removed and the following statement should be added in the relevant response box: "This EMN NCP has provided a response to the requesting EMN NCP. However, they have requested that it is not disseminated further."



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2) If the TCN is subject to an identity check or is found in a specific circumstance (undeclared work, public order,…) by one of the competent authorities, the immigration office has to be informed. The authority who apprehended the TCN will transfer an administrative report in order to obtain an administrative measure regarding the TCN. The immigration office will check the identity in their database and analyze the possibly existing file or create a new file. This administrative practice is not defined in the aliens act, but is arranged by circular. The apprehension of a TCN in irregular stay is in application of article 21 of the law on police services. 3) A person in irregular stay (for example a rejected asylum seeker) will be delivered an order to leave the Belgian territory within in principle 30 days. When there is a risk of absconding or persons in irregular residence who disregard an order to leave the territory may be apprehended and detained with a view to being forcibly returned to their country of origin. According to the European Return Directive and the transposition into national legislation a return decision can be accompanied by an entry ban of three years if the obligation to return has not been complied with. II. Illegal residence is indeed a criminal offence in Belgium. Article 79 of the Aliens act stipulates that this offence is punishable by a fine and/or imprisonment up to three months and up to one year in case of recidivism. However in practice the penalties for illegal stay are never applied. III. According to article 4bis of the aliens act an administrative fine of 200 Euros may be imposed on a foreigner for illegal border crossing. Article 74/2, 74/3, 74/4 and 74/4bis of the Aliens Acts describes the sanctions for carriers and employers.

Bulgaria Yes I. 1) All the bodies within the Ministry of interior having police functions are empowered to verify the identity of a person. The Border Police (MoI) and the Migration Directorate (MoI) are empowered to verify the right of entry and stay in the country. The bodies of border control and the services for administrative control of foreigners can take biometric data for the purpose of automated inspection or in order to ascertain identity of foreigners. 2) When the TCN’s identity verification is within the frame of administrative proceedings (under the competences of the MoI) the procedure is administrative. When there are criminal proceedings the facts and circumstances are established by the Border Police and the Migration Directorate but under the guidance of the relative Prosecution or Court. 3) Current Bulgarian legislation (The Penal Code and The Law for the Foreigners in the Republic of Bulgaria) provides possibilities for the competent authorities to decide on an administrative violation or a crime within certain limits depending on the severity of the case. II. According to the current national legislation the irregular stay on the territory of the country does not constitute a criminal offence and shall be punished as an administrative violation. III. 1) According to the rules of the Penal code the illegal crossing of the state border constitutes a crime. In such cases (within the responsibility of the Border Police authorities) a criminal proceedings shall be initiated against the TCN.



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2) Penal code Art. 279. (1) (Amend., SG 10/93; amend., SG 92/02(amend. SG 103/04)) Who enters or exits through the state border without permit of the respective bodies of the authority or, though by a permit, however not at the places determined for that purpose, shall be punished by imprisonment of up to five years and by a fine of one hundred to three hundred levs. (2) (New, SG 28/82; amend., SG 10/93; amend., SG 92/02, amend. SG 103/04) If the act under para 1 is committed again the punishment shall be imprisonment of one to six years and a fine of one hundred to three hundred levs. (3) (Prev. para 2 - amend., SG 28/82) In the cases under the preceding paras the court, instead of a fine, can rule confiscation of a part or of the whole property of the culprit. (4) (Prev. para 3 - amend., SG 28/82) Preparation for a crime according to para 1 and 2 shall be punished by imprisonment of up to two years or by corrective labour. (5) (Prev. para 4 - amend., SG 28/82) Not punished shall be those who enter the country in order to avail themselves of the right to asylum according to the Constitution. Parallel to the criminal proceedings, according to the Law for the Foreigners in the Republic of Bulgaria, the authorities of the MoI issue an order for forcible escort to the border or expulsion. The order is fulfilled after ruling of the Court competent on the initiated criminal proceedings. In cases where the Court imposes conditional sentence and when there are no obstacles the TCN to be returned to his country of origin or third safe country, the order for forcible escort to the state border or for expulsion shall be fulfilled immediately. When there are obstacles for the immediate fulfillment of the compulsory administrative measure the TCN shall be forcibly accommodated in a special temporary detention center. The detention period shall not be longer than 6 months. There is a possibility for extension of this period with up to 12 months as a result of an order of the Court.

Cyprus Yes

Czech Republic Yes

Denmark Yes

Estonia Yes I. 1) In Estonia the identity verification of TCN is regulated by Aliens Act. A person is required to enable identification and verification of his identity. A favourable procedural act shall not be issued or the procedural act applied for shall not be conducted if it is impossible to identify the person or verify the identity of an alien or other person concerned. If a person staying in Estonian is unable to verify his identity, a competent administrative authority may take biometric data, capturing fingerprints or DNA sample of the person. An administrative authority may identify a person or verify the identity of a person on the basis of other data known to the administrative authority, not referred to in this Act, including the data collected in the course of proceedings concerning the person, carried out earlier, or the data being processed in the databases with regard to the person. If an alien under 15 years of age has not been documented then his identity shall be identified on the basis of the testimony of his legal representative and other evidence. With regard to an alien who refuses to enable taking for example DNA samples, coercion may be applied with the use of physical force or braces as long as it is necessary for taking samples. Before the coercion is applied an alien shall be notified about the application thereof. An alien may be detained without the permit of the administrative court to ensure fulfilment of the obligation to participate in the proceeding in the office rooms of the Police and Border Guard Board or the detention house of the police for up to 48 hours but not longer than necessary to perform the duty to participate in the proceeding.



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2) The verification procedure is one of administrative role but regulated by judicial area. 3) Re-entry ban is usually period of three years, exception is a danger to public order or national security, the prohibition on entry shall be applied for the period of five years by the precept to leave. II. Illegal stay is a criminal offence if alien stays in Estonia without a legal basis at least twice within a year and shall be punished by a pecuniary punishment or up to one year of imprisonment. III. 1) Yes 2) Illegal crossing of the state border or temporary border line of the Republic of Estonia is punishable by a pecuniary punishment or up to one year of imprisonment.

Finland Yes

France Yes I. 1) French law provides a mechanism for identity verification in Article 78-3 of the Code of Criminal Procedure. It applies when the controlled person refuses or is unable to prove his identity. If necessary, this person can then be detained on site by police services or taken to a police place. In all cases, this person is immediately presented to a judicial police officer who will conduct the verification (which may give rise, after approval by the judicial authority, to fingerprinting or photographs). The person can only be detained while his identity is established and the detention is, in any event, limited to a maximum of four hours from the initial identity check. The detainee has rights (to notify the public prosecutor, his family, etc.) and the entire procedure is recorded in the minute. 2) The verification procedure outlined in 1) is part of a judicial framework. The person who was subject to this procedure can seize the judicial judge who will establish the nullity of the procedure if it appears that the rules imposed by the Code of Criminal Procedure were not followed. 3) The existence of a previous return decision can have consequences. For example, if it turns out that the TCN was initially given a period of voluntary return and that he remained illegally on French territory beyond this period, the administrative authority may notify the TCN of a re-entry ban of up to two years. Illegal crossing of the border also carries consequences: for example, return on French territory, while one is still under a re-entry ban, may lead to an extension of the ban. II. Today, the Code on entry and residence of foreigners and right of asylum (CESEDA) indicates that illegal stay in France or maintenance beyond the period authorized by the visa is liable to imprisonment of one year and a fine of 3,750 Euros. Can be added to this an entry ban imposed by the criminal court, for a duration not exceeding three years. This entry ban shall automatically entail the removal of the TCN upon the expiration of the sentence. The same penalties apply to a TCN who has not respected the convention implementing the Schengen Agreement. III. 1) Yes. 2) Imprisonment for one year and fine of 3,750 Euros.



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Germany Yes I. 1) § 49 of the German Residence Act provides for the procedure to investigate, determine and secure the identity of foreigners/aliens. The foreigner shall be obliged by law and by request of the competent authorities to disclose information regarding his/her age, identity and nationality and in compliance with German Law to disclose information for the procurement of travel documents to his/her home country to the representation of the State of which he/she (presumably) is a national. The foreigner shall also be obliged by Law to tolerate measures required for the investigation, determination and securing of his/her nationality, e.g. fingerprinting and photographing. Medical examinations for the determination of age shall be admissible for foreigners who will have turned 14 provided that the identity cannot be determined in another way or only with considerable difficulties. The recording of the spoken word shall also be admissible for the determination of the country or region of origin. 2) The administrative procedure allows the person concerned a legal action at the administrative court. 3) A foreigner who has been expelled, refouled or removed shall not be permitted to return again and to stay in the Federal Territory and he/she will not be provided with a residence title. Upon application such consequences will be limited in time and the assessment of the time limit, which may last a maximum of five years, will take into consideration if the foreigner has left Germany in due time and voluntarily (§ 11 German Residence Act). II. Anyone remaining in the Federal Territory illegally and thus violating the passport requirement or without a legal residence permit and who does not cooperate in the procedure for the determination of the identity (§ 95, paragraph no. 1, 2, 5 and 6 and paragraph 6, German Residence Act) will be punished with a term of imprisonment of up to one year or with a fine. The negligent violation of the passport requirement or a stay without a residence title constitutes an administrative offence which can be punished with a fine of up to 3,000 Euro. Whoever enters the Federal Territory or whoever stays here against the prohibition of entry or stay as described under I.3 shall be punished with a term of imprisonment of up to three years or with a fine (§ 95, paragraph 2 no. 1, German Residence Act). The attempt of entering the country illegally is also punishable by Law. (§ 95, paragraph 3, German Residence Act). III. 1) and 2) Whoever enters the Federal Territory whilst violating the passport requirement or without the required residence title shall be liable to prosecution whereby the punishment shall be up to one year of imprisonment or a fine. (§ 95, paragraph 1, no. 3 and paragraph 6 of the German Residence Act). Whoever avoids border controls and/or does not carry a passport or a passport replacement document commits an administrative offence; the fine for such actions can be up to 5,000 and/or 3,000 Euro (§ 98, paragraph 2, no. 2 and paragraph 3, no. 3 and paragraph 5 of the German Residence Act).

Greece Yes I) 1) Greek law provides a mechanism for identity verification, common for domestics and aliens, in Article 74 paragraph 15 of the Presidential decree 141/91. It applies when the controlled person (native or foreigner) refuses or is unable to prove his identity or because of the site, time and behavior is suspected of committing a crime. If necessary, this person can then be detained on site by police services or taken to a police place. If necessary, that person is driven by a police officer in the police store. The person may be detained only for the purpose for which it was taken to the police station and the duration of the identification and detention in any case shall be limited to a



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reasonable period, which shall not exceed the time required for the initial authentication, which case law has held that shall not exceed four hours, and practically this is followed. Special provisions regarding the verification procedure of the regularity of the situation of third country nationals into Greek law provide the following: According to article 6 of Law 3386/2005 concerning the entry, residence and social integration of third country nationals in the Greek Territory, a third country national who enters Greek territory should carry a passport or other travel document, acknowledged by international conventions. These documents shall bear, if required by European legislation and national regulations, visa certification. One of the cases which require the expulsion and under certain circumstances the detention of a third country national in accordance with Article 76 of the previous Act, is if he violates the provisions of Law 3386/2005. In case the alien is considered dangerous to the public order or safety of the country, or escape suspect, or avoids or hampers the preparation of his departure or removal proceedings, by decision of the competent Police Chief is ordered, according to paragraph 3 of article 76 of law 3386/2005, his temporary detention, until the issue, within 3 days, of the deportation decision. If an expulsion is decided, detention continues until the deportation, but in any case may not exceed six (6) months. If the expulsion is delayed because the alien refuses to cooperate or delays in obtaining necessary for deportation documents from the country of origin, the detention of an alien may be extended for a limited time not exceeding twelve (12) months. The alien must be informed in a language he understands, of the reasons for detention and communication with his attorney shall be facilitated. An alien detained, along with his rights under the Code of Administrative Procedure, he may raise objections to the detention or extension of his detention before the President or by him designated judge, of the Administrative Court, in whose Territory is detained. If the alien who is to be deported, is not considered escape suspect or dangerous to public order or the President of the Administrative Court disagrees with the reservation, with the same judgment sets a deadline for departure, which may not exceed thirty days According to article 81 of Law 3386/2005 the alien who meets the conditions of paragraph 3 of Article 76 hereof, is held in the relevant police authority. Pending completion of deportation proceedings, he remains in special places, set up by the Ministers of Interior, Public Administration and Decentralization, Economy and Finance, Health and Social Welfare and Public Order. According to article 13 of Law 3907/2011, third-country nationals arrested entering the country illegally are driven directly with responsibility of the authority that conducted the arrest in Center or a first Reception Unit within the limits of the local competence of the area in which they were arrested. For the purposes of verification and other procedures of the first reception, those subject to them, are under restriction of their freedom. Necessarily they remain within the premises of the First Reception Centre or in other suitable facilities. Their stay there is regulated by an Operating Regulation, the content of which has been made properly known to them. The third country national subjected to the processes of first reception can exit the Centre only after by special written permission of the Head of Centre or Unit. In each case throughout the course of the proceedings the first host the Head and the staff of the Center or Unit shall, as provided in each case make sure that third countries nationals:

• Shall be under decent living conditions • Shall maintain as far as possible their family unity • Shall have access to emergency health care and essential treatment or psychosocial support. • meet, if they belong to vulnerable groups, the appropriate treatment • are adequately informed about their rights and obligations



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• have access to guidance and legal advice about their condition • maintain contact with social agencies and organizations

2) The verification procedure outlined in 1 is an administrative procedure, conducted by the competent police officers. The judicial authorities are involved in the verification procedure of the regularity of a third country national only if the alien exercises objections against the acts of Police Authority. 3) The existence of a previous return decision can have consequences. According to article 82 of Law 3386/2005 the Ministry of Public Order maintains a list of undesirable aliens. The criteria and procedure for registration and deregistration of immigrants from the list are established by a decision of the Ministers of Interior, Public Administration and Decentralization, Foreign Affairs, Defense, Justice and Public Order. By imprisonment of at least three months and a fine of three thousand (3,000) to ten thousand (10,000) Euros is penalized any alien who returns to the country illegally and is already registered in the list of undesirable aliens. The appeal has no suspensive effect. II. Today, the Law 3386/2005 indicates in article 83 that a third country national, leaving or attempting to leave the Greek territory or enters or attempts to enter it without the legal formalities, shall be punished with imprisonment of at least three months and a fine of at least one thousand five hundred (1,500) Euros. It is considered aggravating circumstance if someone tries to leave clandestinely, or is wanted by the judicial or police authorities or has tax liabilities or other obligations to the State or is a recidivist and is imposed imprisonment of at least six months and a fine of at least three thousand (3,000) Euros. According to paragraph 2 of this Article, if the third country national enters the Greek territory or leaves it without the legal formalities, the Public Prosecutor, upon approval of the prosecutor Appeals, to whom he shall report without delay, may abstain from prosecution for this act, and promptly he notifies this decision to the commander of the police department or port authority, who noted illegal entry or exit, so he, with his decision he redirects the third country national to his country of origin or provenance. The approval of the prosecutor of Appeal may be given by any means. If the immediate return of a third country national is not possible, the Chief of Police or Port authority, having drafted a report, refers to a third-country competent administrative authority for expulsion, in accordance with Article 76 hereof. This principle, if the expulsion is not executed within three months, shall notify the competent public prosecutor. In this case, the Public Prosecutor may withdraw its decision to refrain from prosecution, following the approval of the prosecutor of appeal, unless one year has elapsed from the date of the illegal entry of a third country national, in Greek Territory. III. 1) Yes. 2) Yes. Imprisonment of at least three months and a fine of at least one thousand five hundred (1,500) Euros. It is considered aggravating circumstance if someone tries to leave clandestinely, sought by the judicial or police authorities or has tax liabilities or other obligations to the State or is a recidivist and is imposed imprisonment of at least six months and a fine of at least three thousand (3,000) Euros.

Hungary Yes I. 1) According to the provisions of the Act on the Admission and Right of Residence of Third-Country Nationals and the Government Decree on its implementation, an alien must present and hand over their travel documents, residence permits or other personal identification for inspection. If the alien’s documents have expired or they cannot prove their identity, they are summoned either before a



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local agency that has jurisdiction over the place of inspection (if the police can order the expulsion of the alien) or a regional directorate of the Office of Immigration and Nationality (OIN). To prevent multiple procedures and to facilitate the identification of the alien, the competent authority records the alien’s fingerprints. The maximum duration of detention ordered in immigration procedures is 12 months. During their detention, aliens have several rights, including using their native language, receiving visitors, legal representation, communication with family members, etc. 2) The immigration procedure can have both administrative and judicial stages. The first instance takes place before the administrative authorities (Police, OIN), while the appeals procedure takes place before a court of justice. The immigration procedure is continuously monitored by the court, and according to an agreement between the Police, the Hungarian Helsinki Committee and the UNHCR, representatives of NGOs conduct regular inspections at the immigration authorities and at guarded shelters. 3) If a TCN is apprehended and the competent authority finds that the alien has previously been expelled from the territory of the European Union, the person in question is transferred for prosecution to the competent criminal authority. These cases usually end with reprimands by the prosecutor. Following the completion of the criminal proceedings, the immigration authority resumes the previously suspended immigration procedure. If the TCN has crossed the border illegally, the immigration authority does not initiate a new proceeding to avoid duplication. II. Violation of the prohibition of entry and residence, which can be punished with up to one year of imprisonment. III. 1) No. 2) The on-the-spot fine ranges from 5 000 to 50 000 Forints, while in the case of infringement denunciations it ranges from 5 000 to 150 000 Forints.

Ireland Yes

Italy Yes I. 1) In Italy, there is no distinction between identity verification and verification of the regularity of the situation of a TCN. Such distinction is only considered when a bona fide non-national, unable i.e. to prove loss of his/her passport and related entry visa, appeals. Article 6, paragraph 3 of the Consolidated Act on Immigration (Legislative Decree no. 286 of 1998, and subsequent amendments) establishes that if the TCN does not comply with the order to show his/her passport or other identification document and residence permit or other documentary evidence of his/her regular presence in the territory of the State, he/she shall be punished with imprisonment up to one year and a fine of up to € 2,000. In order to ascertain the identity of the alien (even when there is reason to doubt the authenticity of the document), officers and police officers have the obligation to bring him/her to a police headquarters for photographing and fingerprinting. Article 11 of the Law Decree no. 59 of 1978 (Custody for identification purposes) establishes that the officer or police officer must immediately notify the Public Prosecutor of the custody, and that the identification process must take place within 24 hours.



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If there are sufficient grounds for the immediate accompaniment to the border (e.g. if the subject is dangerous or can escape; if he/she has not complied with the mandatory provisions of the voluntary return) and the person has not been identified (or is devoid of a document for foreign travel), the Police commissioner issues a custody order at an Identification and Expulsion Centre (CIE) for the time strictly necessary (art. 14 of the Consolidated Act on Immigration). The Police Commissioner must ask the Justice of the Peace to confirm the detention within 48 hours, and the judge must validate it within the following 48 hours. The validation involves the permanence in the center for a total of thirty days. At the request of the Police commissioner, the judge may extend the term for a further period of thirty days. After that time period, if further investigations on the TCN’s identity are necessary, the Police Commissioner may ask the Justice of the Peace to extend the detention for a further period of sixty days. If, due to lack of collaboration by the TCN, there are still obstacles to the removal, the Police Commissioner may request the judge a further extension of sixty days, up to a maximum of 18 months in total. The TCN are held in the Center in such a way as to ensure the necessary assistance and full respect for their dignity, and are allowed to communicate with their family by mail and by phone. 2) The verification procedure for the regularity of a TCN’s stay is of administrative nature. However, when measures restricting personal freedom are involved (accompaniment for identification or forcible expulsion from Italy) the procedure is always verified by the judicial authorities, as described in point 1). 3) The expulsion procedure for a TCN who was previously subject to removal or rejection order is not different from that involving a TCN who was not. However, in these cases the expulsion order is always carried out through accompaniment to the border (and, if necessary, detainment at an Identification and Expulsion Center). The TCN is also punished for the previous offense by a fine (of 6,000 to 30,000 euro, according to the seriousness of the violation). II. Art. 10 bis of the Consolidated Act on Immigration (introduced by Law no. 94 of July 15, 2009) establishes that a TCN entering the country or staying in Italy in violation of entry and stay regulations, is punishable by a fine of 5,000 to 10,000 euro. If, instead, the TCN irregularly resides in Italy after being subject to a removal or rejection order, the following criminal sanctions are applicable: violation of the order issued by the Police Commissioner (Questore) to leave the national territory within seven days, issued in case that the TCN could not be detained at an Identification and Expulsion Center, or the permanence in such Center did not allow their removal from the national territory: fine of 10,000 to 20,000 euro. Any TCN avoiding the voluntary assisted return program which he/she had been granted, is subject to a fine of 10,000 to 20,000 euro. Any TCN being issued a removal order without accompaniment to the border (voluntary departure within 7 to 30 days), who does not carry out such order, is subject to a fine of 6,000 to 15,000 euro. Any TCN being issued a new removal order for violating a previous order issued by the Police Commissioner, who does not carry out



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such order, is subject to a fine of 15,000 to 30,000 euro. III. 1) Yes, irregular entry is a criminal offense; 2) Any TCN illegally crossing the national borders is punishable by a fine of 5,000 to 10,000 euro. Any TNC previously expelled or rejected from Italy, who enters again in the national territory without previous authorization by the Ministry of Interior, is punishable by imprisonment from 1 to 4 years, and is expelled again with immediate accompaniment to the border.

Latvia Yes I. 1) In case if a foreigner has documents, the legitimacy of stay is to be checked. If a foreigner does not have any documents identification procedure is carried out: fingerprints, photo are to be taken, a person is to be checked through data bases. In accordance with Immigration law a foreigner has a duty, if it is requested by the State authority within the competence thereof, to prove by documents that he/she is entitled to enter and reside on the territory, as well as to allow to take his/her fingerprints. State Border Guard is entitled to take a decision on the detention of a foreigner if there is a basis to consider that he/she will avoid the removal procedure or will disturb its preparation or the possibility of flight of the foreigner exists and this is based on the conditions mentioned in Immigration law. State Border Guard Service shall detain a foreigner in order to: a) Conduct his/her forced removal. If the court imposed an additional sanction on a foreigner – removal from the Republic of Latvia - there is a right to detain him/her after the judgment was proclaimed unless a foreigner in this situation has not been [already] sanctioned to the security measure - arrest; b) Ensure the removal procedure, which is provided in Section 46, Paragraph 5 of this Law. The State Border Guard has the right to detain a foreigner for more than 10 days only pursuant to court decision. The foreigner has a right to appeal the decision regarding detention to a court. The submission of an application to a court may not suspend the operation of the decision. The Court can take decision on detention of a foreigner for a time period of up to two months. The total time period of detention of a foreigner may not exceed six months. The Court may take decision on the extension of the duration of detention which shall not be exceeding additional 12 months if a foreigner refuses to cooperate or the receipt of the necessary documents from the third country is delayed. 2) The State Border Guard is making checks whether a foreigner has right for entry or stay on the territory of the country. The Court controls the State Border Guard activities in case if a foreigner is detained. 3) In case if a foreigner within one year repeatedly illegally has crossed the border or has used forged documents at first the criminal process is applied and after that the removal procedure. II. Under what circumstances is illegal stay a criminal offence? Detail the penalties for each case. Illegal stay is not a criminal offence in Latvia



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III. 1) and 2) In accordance with Criminal law: - for a person who intentionally commits illegal crossing of the State border, if commission thereof is repeated within one year, the applicable punishment is deprivation of liberty for a term not exceeding three years, or custodial arrest, or community service, or a fine not exceeding sixty times the minimum monthly wage. - for a person who commits concealing personal identity, in the course of residing in the Republic of Latvia without an appropriate personal identification document or using the document of another person or a forged personal identification document, the applicable punishment is deprivation of liberty for a term not exceeding two years or community service, or a fine not exceeding forty times the minimum monthly wage.

Lithuania Yes I. 1) The law does not specify this distinction. The migration control authorities (police, border guards), while checking the identity of a TCN, also check whether his or her presence is legal. When a TCN is detained (for illegal stay, etc.), the authorities have the right to examine documents of the TCN, his personal belongings, to make photos and take fingerprints. Aliens’ Law: Article 120. Establishing the Identity of a Detained Alien 1. For the purposes of establishing the identity of a detained alien, an officer of the police or any other law enforcement institution shall have the right to temporarily seize the alien’s travel document, travel tickets, other documents (if the alien is in possession of any) until the identity of the alien and authenticity of his documents are established. 2. When establishing the identity of an alien, an officer of the police or any other law enforcement institution shall have the right to carry out his personal search and inspect his personal belongings in accordance with the procedure established by the laws of the Republic of Lithuania. 3. The data relating to the detained alien may be communicated to a foreign country with the purpose of establishing the person’s identity in compliance with the laws of the Republic of Lithuania and international legal acts. Article 121. Photographing and Fingerprinting an Alien 1. For the purpose of identification an alien shall be photographed and fingerprinted when he: 1) lodges an application for asylum in the Republic of Lithuania; 2) has been detained for unlawful entry into the Republic of Lithuania, stay, residence, transit through or departure from the Republic of Lithuania; 3) is expelled from the Republic of Lithuania or returned to a foreign country. 2. The aliens’ fingerprints shall be registered by an institution authorised by the Minister of the Interior. The fingerprints shall be processed in compliance with the requirements of the Republic of Lithuania Law on Legal Protection of Personal Data. 2) This procedure of identity establishment is administrative. However, the TCN has the right to the court appeal because of his/her detention.



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3) Yes. The procedure that follows depends on each particular case. If the person was already subject to a return decision, then s/he is removed (expelled) from Lithuania. If the person has crossed the border legally, and only then s/he lost the legality of her/his status, then usually a return order is taken (with a period of voluntary departure). II. Article 206 of the Code of Administrative Offences of the Republic of Lithuania details the liability for violations of the procedure of entry, residence, transit and departure of foreigners from the Republic of Lithuania. This act incurs a warning or a penalty of two hundred and fifty to one thousand litas. III. Article 291 of the Criminal Code of the Republic of Lithuania provides for criminal liability for the illegal crossing of the state border. According to Article 291 paragraph 1, a person who illegally crosses the state border of the Republic of Lithuania shall be punished by a fine, arrest or by imprisonment for a term of up to two years. According to Article 291 paragraph 2, an alien who unlawfully enters the Republic of Lithuania seeking to exercise the right of asylum shall be released from criminal liability. According to Article 291 paragraph 3, an alien who commits the act provided for in paragraph 1 of this Article with the intent of illegally crossing into a third state from the Republic of Lithuania shall be released from criminal liability according to paragraph 1 of this Article where he is, in accordance with the established procedure, subject to deportation back to the state from the territory whereof he illegally crossed the state border of the Republic of Lithuania or to the state whose citizen he is.

Luxembourg Yes I. 1) Luxembourg law provides a mechanism for identity verification in a) Article 45 of the Code of Criminal Procedure (Code d’instruction criminelle modifié par loi du 16 juin 1989) and b) by articles 133, 135 and 136 of the Law of 29 August 2008 of free movement of persons and immigration.

The police can apply the dispositions in the CIC against people for which there is evidence implicating them: • that they have committed or attempt to commit an infraction; • that they are preparing to commit a crime; • that they can offer further useful information to the investigation in case of a crime • that they are the object of a warrant for their arrest order by a judicial or administrative authority

When the controlled person refuses or is unable to prove his identity in the CIC , this person can then be detained on site or in the police

office by the police (article 45 (2) of the C.I.C). This person is immediately presented to a judicial police officer who will conduct the verification (article 45 (3) CIC). The person can only be detained while his identity is established and the detention is, in any event, limited to a maximum of four hours from the initial identity check. The detainee has rights (to notify the public prosecutor, his family, etc. For this purpose a telephone has to be put at his/her disposal) and the entire procedure is recorded in the minute that has to be presented to the person that was controlled for signature. If he refuses to sign it has to be noted in the minute (article 45 (7) CIC). The public prosecutor can stop at any moment the detention (articles 45 (4) and (5) CIC).

b) According to the above mentioned articles of the Law of 29 August 2008 of free movement of persons and immigration, at any time the police demand a foreigner to identify himself and to verify his/her travel documents with which the entry and stay had been authorized. According to article 119 in relation with article 104 of the Law of 29 August 2008 the foreigner that has been given an entry ban by the airport police (service de contrôle à l’aéroport), he/she can be maintained in the waiting area of the airport for a maximal duration of 48



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hours. When the detainee cannot be expelled in the 48 hours the foreigner is transferred to a detention facility based on a decision of the Minister of Immigration. The foreigner that is an irregular migrant can be place in a detention facility in order to prepare the execution of the expulsion. According to article 120(3), the maximum period of this detention is of one month. However, it can be extended three times (each time for a month). If, despite the efforts deployed, it is probable that the execution of the expulsion will take longer because of lack of cooperation of the authorities of the country of origin of the person detained or because of delays for obtaining from these countries the necessary travel documents, the duration of the detention can be extended two additional times (each time for a month). An appeal against the detention measure taken by the Minister is possible to be filed at the First instance administrative court. Against the decision of this court an appeal can be filed at the Administrative Court. 2) a)The verification procedure through fingerprinting and photographs outlined in answer 1) is only applicable in a judicial procedure and it has to be ordered or authorized by the public prosecutor or instruction judge (article 45 (6) § 1 and 2 CIC). However, the public prosecutor can order that human cells will be collected to be submitted to DNA testing for purposes of identifying the person (article 45 (6) § 3 CIC). The person who was subject to this procedure can seize the judicial judge who will establish the nullity of the procedure if it appears that the rules imposed by the Code of Criminal Procedure were not followed. It is important to mention that the fingerprints and pictures taken can be used for the prevention, research and verification of a criminal action. However, if the person controlled is not subject to a criminal investigation or execution measure the fingerprints and pictures must be destroyed in the six months following the drawn up of the minute (article 45 (8) CIC). 2b) According to article 120 (4) of the Law of 29 August 2008 on free movement of persons and immigration, the authorities are allow to take a photographs (pictures) of the person that is brought to detention. The collection of fingerprints is allowed only in cases that is strictly necessary to establish the identity of the detained foreigner or for the issuance of the travel document. However, this is an administrative procedure and a judicial order is not required (article 135 and 136 of the Law of 29 August 2008 and article 45 of the CIC) 3) The existence of a previous return decision “assortie d’une interdiction d’entrée sur le territoire” can have consequences. The return on Luxemburgish territory, while the person is still under a re-entry ban, is punishable with imprisonment of six months to three years and a fine of 251 to 3000 Euros or only one of them (article 142 of the Law of 29 August 2008). II. The Law of 29 August 2008 punishes the persons that have entered illegally the territory or that have entered legally but have overstay can be punished with 8 days to 1 year imprisonment and a fine of 251 to 1250 Euros. These fines can be imposed simultaneously or only one of them. The same punishment will be imposed to the foreigner that work illegally or outside of the scope of the residence permit delivered to him (article 140 of the Law of 29 August 2008). These sanctions will be imposed by the judicial courts. However, the Ministry of Immigration can order at the time of ordering the expulsion of the irregular migrant an entry and stay ban of five years (article 112 of the Law of 29 August 2008). In case that there is an imprisonment judgment, the expulsion will be carrying out after the imprisonment judgment has been served. III.



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1) and 2) Luxembourg only has one external border which is the international airport at Findel, so the possibility of illegal crossing is almost hypothetical. However, the illegal crossing of the border is considered a criminal offense and if the person tries to enter the territory with false documents or make false declarations to the competent authority he/she can be sentenced from one month to two years of imprisonment and a fine of 251 to 3000 Euros (or only one of them).

Malta Yes

Netherlands Yes I. 1) Yes there is a distinction. The time for verification whether a TCN has an authorisation to stay in the country is limited to 6 hours (not counting the hours between midnight and nine o'clock in the morning). In Dutch this detention is called "ophouding", which is best translated as "inquiry time". During this inquiry time fingerprints are taken and checked (nationally and Eurodac), photo's are taken and, when necessary, the person is interviewed. Of course the database for registration of foreigners -BVV- will be checked. In cases of doubt considering the regularity of stay the INS will be contacted. When there are indications that the TCN has no right to stay but this could not be established within the period of 6 hours, this period can be prolonged with a maximum of 48 hours. In practice this legal possibility is not often used, but might be indicated when for instance the right to stay in another MS has to be established or documentation is said to be delivered but has not arrived yet. During these six hours, which do not include the time between midnight and 9 o' clock in the morning, the person is kept in a police station. In the case of prolongation of the time needed to establish the regularity of his/her stay the person will also be kept in a police station. The legal basis of this detention can be found in article 50 of the Dutch Alien law. When the person is interviewed during this time he has the right of a lawyer to be present. The decision to hold the person for investigation concerning the regularity of his stay can be made by any competent police officer (article 47 Dutch points out who are competent). The decision to prolong this period with another 48 hours can however only be made by a competent police officer who has the rank of assistance district attorney. The decision to hold the person in custody pending the investigations on the regularity of his stay can be appealed to the judge (article 93 Dutch alien law), though this is rarely done. Usually this decision is only appealed when the person is subsequently placed in alien detention. When the identity of the person and/or the regularity of his situation can not be established during this period, or if the identity of the person has been established, but it has become clear that he has no legal stay in Europe (persons with a legal stay in another MS will be ordered to leave the country) the person might be placed in -alien- detention in order to establish his identity in order to facilitate his expulsion from the country to his country of origin (article 59 Dutch alien law). 2) Both the decision to hold the person in detention pending inquiries to the legality of his stay (article 50) and the decision to detain the person in alien detention, when the legality could not be established or established in a negative way (article 59), are made by a competent police officer and thus makes it an administrative decision. In case the TCN has no lawyer a -specialized-lawyer will be appointed to him when he is placed in alien detention. The TCN can -and



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because he has a lawyer usually does- challenge the decision to put him in alien detention at the district court of the Hague, which has several places where the actual proceedings are held. Dutch law states that a court hearing before the judge is held within 14 days after appealing the decision to put the TCN in custody (article 94 Dutch alien law). When no appeal is made the INS will inform the court of the detention decision after 28 days of detention ex officio. The court hearing will be held within 14 days after this ex officio notification (Article 94 Dutch alien law). The decision of the district court can be appealed at the Council of State. During this detention the Return and Repatriation Service will try to establish the -real- identity of the TCN and try to obtain documents for his removal. Establishing the -real- identity of an undocumented TCN is often a difficult and time consuming process. The detention shall not exceed a period of six months (article 59). However after these six months the detention can be prolonged with a maximum of twelve months on the grounds mentioned in article 15 Return directive. The decision on prolongation of the detention with a maximum of twelve months must be individually taken and states all relevant circumstances of the case. In cases where the identity of a TCN could not be established due to the behaviour of the TCN, the detention will be -as a rule- prolonged. In the mean time the TCN can at any given moment re-appeal his detention (article 96 Dutch alien law). These decisions are final and cannot be appealed at the Council of State. \ Dutch jurisprudence limits -as a rule- the duration of the detention to 12 months in cases of active frustrating the research into the identity of the TCN. When a prolongation of the detention decision is not appealed by the TCN self, the INS will ex officio inform the court of this prolongation decision. The court decisions on the prolongation decision after six months can be appealed at the Council of State. 3) No, detention can only be ordered when the TCN is subject to a removal order. When an illegal TCN has made no attempts to legalize his stay in the country and subsequently there is no return decision when he came in contact with the aliens police, there will be a return decision issued. In this decision the person can either be given a period for voluntary leave within 28 days or no time for voluntary leave when there is a risk of absconding and/or the person poses a threat to public order. In the latter case the person will also be placed in alien detention as the grounds for not granting a period for voluntary leave are the same as to put the TCN in detention. There are no special provisions in Dutch law for illegal entry of the country from another Schengen country, although Dutch police has some special surveillance competence which only apply in border areas (article 4.17a Dutch Alien regulations, see also C278/12 PPU, court of justice EU). When a person is intercepted while crossing the external Schengen borders illegally, he will be refused entrance in accordance to article 13 Schengen Border Code. The TCN will usually be placed in detention in accordance to article 6 of the Dutch alien law, which is the legal base for detention of a TCN who is refused entrance to the country. Only when the TCN claims for asylum or specifically asks for a lawyer one will be assigned to him in these cases. In this respect these border cases differ from the inland cases where a lawyer will always be appointed when a TCN is detained in accordance to article 59 Dutch alien law. Furthermore, the same procedural safeguards as to a judicial review apply on the detention of TCN who was refused entrance, as to a TCN who is found inland and placed in alien detention, i.e. court hearing within 14 days after appealing the decision and ex officio notification



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of the court after 28 days of detention when no appeal is made (article 94 Dutch alien law). II. Illegal stay is not in itself a criminal offence. However when a person is ordered to leave the country immediately or doesn't obey the period of voluntary leave, an entry ban will be issued (article 66a Dutch alien law). Dutch law makes a distinction between a "light" entry ban and an entry ban for a period of maximum five years. Not obeying this entry ban and staying in the country in defiance of this "light" entry ban is considered a misdemeanour and can be fined (article 108 Dutch alien law), depending on the time the person is in the country in defiance of this entry ban, the fine will vary between 350 euro (one until 15 days) or 1500 euro (longer than two years) (police guidelines). When a TCN poses a serious threat to public order he could become an undesired person (article 67 Dutch alien law). TCN who pose this threat will now however -as a rule- get an “severe” entry ban (66a, para. 7, Dutch alien law). Staying in the Netherlands as un undesired person or with a “severe" entry ban, can be punished with a maximum of six months imprisonment (article 197 Dutch penal code). First offence is usually punished with two months imprisonment though the sentence will become higher when the TCN doesn't leave the country. III. 1) No. 2) As this is no criminal offence there are no penalties, unless a forged document is used in order to try to enter the country.

Poland Yes I. 1) According to the Polish legislation (Act of 13 June 2003 on Aliens, as amended) a TCN submitted to the verification procedure (control of legality of his/her stay in the territory of the Republic of Poland) is obliged to present the document(s) (and other permits if required) authorising him/her to stay in Poland.

If a TCN doesn’t present any identification document or when document produced brings justifiable doubts as to its authenticity, a TCN’s fingerprints are taken. Establishing or verifying of TCN’s identity is done by checking the fingerprints previously taken from him/her in VIS and national register of fingerprints taken from TCNs found illegally staying in the territory of the Republic of Poland.

If a TCN’s identity is established but he/she is not able to produce any documents entitling him/her to stay in the territory of Poland, the national registers concerning aliens are searched (registers of issued visas, permits to stay, refugees, denied entry, expelled etc.).

If there is no possibility to establish the identity of a TCN during the procedure of control of legality of stay in the territory of the Republic of Poland, a TCN may be detained (in special premises for detainees) for a period not exceeding 48 hours.

The authority which has detained a TCN should, if required by the circumstances is to: 1) make a request to the court for placing a TCN into the guarded centre or in the arrest for the purpose of expulsion; 2) make a request to the voivod for rendering of the decision on withdrawal of the permit to settle or the long-term resident’s EC

resident permit; 3) make a request to the voivod for rendering of the decision on expulsion;



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4) execute the decision on expulsion, in particular escort a TCN to the border of the Republic of Poland or to the border, an airport or a sea port of the country to which he/she is being expelled.

A TCN shall be released from detention: 1) if, within the time limit of 48 hours from detention, he/she has not been handed over to the court together with the request for

placing into the guarded centre or in the arrest for the purpose of expulsion; 1) if, within the time limit of 24 hours from being handed over to the court, he/she has not been delivered a ruling on placing into the

guarded centre or in the arrest for the purpose of expulsion; 2) on the order of the court; 3) if the reason for detention ceased to exist.

According to the Code of Criminal Procedure (applying for detention of an alien in the scope not regulated by the Act on Aliens) detainee has right to complaint to the court against legitimacy, legality and correctness of the detention. He/she has also right to notify the closest person, employer, school or university. He/she can also request to contact his/her lawyer and talk to him in private. Detainee can also request to contact the diplomatic or consular post of country of his/her origin. He/she has also right to complaint to the prosecutor against the way in which detention was carried out.

While rendering the ruling on placing a TCN in the guarded centre or in the arrest for the purpose of expulsion, the court shall specify the period of detention or arrest not exceeding 90 days. The period of stay in the guarded centre or in the arrest for the purpose of expulsion may be prolonged for a specified period necessary to execute the decision on expulsion (if issued), if that decision was not executed due to the TCN’s fault. The period of stay in the guarded centre or in the arrest for the purpose of expulsion may not exceed one year.

To establish the identity of a TCN placed in the guarded centre (or arrest for the purposes of expulsion) co-operation with consular posts of third countries is commenced (visits, telephone interviews). Interviews with the experts from the countries of origin are carried out as well.

2) The identity verification procedure accompanies the administrative procedure. It may be done by the complaint according to the rules set in Code of Administrative Procedures.

The detention is subject to the judicial control (see point 1).

3) If the person was subject to a removal order previously and a period for voluntary departure was given to him/her, and the person hadn’t fulfilled this obligation – the removal order is enforced (without issuing another return decision). The TCN is placed in the guarded centre (or the arrest for the purposes of expulsion) if there is no possibility to enforce the decision immediately. Re-entry ban may be extended (in Poland every return decision is accompanied by an entry ban – Poland or Poland and other Schengen states).

In case of illegal crossing the border the procedure doesn’t vary in general.

In some circumstances when a TCN was apprehended in the border zone directly after having crossed the border involuntarily and contrary to the binding laws, he/she may be immediately escorted to the state border of the Republic of Poland (without issuing any decision, after his/her fingerprints was taken).



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II. Illegal stay is not a criminal offence in the Republic of Poland. Illegal stay is a petty offence subject to a fine (up to 5000 PLN (1.250 EUR)).

If a TCN is issued a return decision, an entry ban is imposed for the period of between 6 months and 5 years (depending on circumstances of illegal stay).

III.

1) and 2) As a rule illegal crossing of the border is a petty offence. In accordance with the art. 49a of the Petty Offences’ Code a person who in an illegal manner crosses the border of the Republic of Poland is liable to a fine (up to 5.000 PLN (1.250 EUR)).

In some circumstances illegal crossing the border may also be a criminal offence. According to the art. 264 of the Polish Criminal Code anyone who crosses the Polish border using force, threat, circumvention or with co-operation with other individuals is liable to imprisonment up to 3 years.

Regardless of the above, the TCN may be subject to a return decision accompanied by an entry ban (up to 3 or 5 years – depending on the circumstances).

Portugal Yes I. 1) Pursuant to the Code of Penal Proceedings, any person found at a place that is public, open to the public, or subject to police surveillance, on whom there is grounded suspicion of having committed crimes, having been object of extradition or expulsion orders, having entered the country illegally, or being object of an arrest warrant is liable to be asked for proof of identification by the law enforcing authorities. If the person does not carry an identification document, he / she can identify himself / herself by one of the following means: a) Communicating with a third person who is able to deliver his / her identification documents; b) going to the place where his / her ID documents are kept, escorted by agents of the law enforcing authorities; Should identification of the person not be viable, he / she will be escorted to the nearest police station, where he / she should remain during the period of time strictly necessary to proceed with the respective identification, and, in no case exceeding a period of 6 hours. In this situation dactyloscopic, photographic or other similar proof can be collected and the individual under identification is invited to indicate his / her place of residence where he / she can be met or contacted. Specifically, the Aliens Act grants the Immigration and Border Service the power to resort to the means of identification pursuant to the national and the EU legislation applicable to the issuance of identification cards and visas - such as recording facial and fingerprint images, resorting wherever possible to biometrics and experts opinions with a view to confirm the identity of foreign citizens. Nevertheless, the law does not formally distinguish between identification of the individuals and the checking of their legal or otherwise status in terms of their entry and permanence in national territory. 2) The obligation of proving one’s identity to the relevant authorities is a law enforcement measure and its application is restricted by the limits imposed on police action, namely the principle of prohibiting the abuse of position.



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3) Yes. The procedure that follows varies depending on the person’s background. Also, in case of violation of an entry ban (Article 187 of Act 23/2007) the foreign citizen may be punished with a prison sentence up to 2 years or to a 100 days day rate fine. II. The irregular entry and stay in Portuguese territory are not criminal offenses according to the Portuguese legal Framework. III. 1) No 2) Those who enter or remain irregularly are subject to coercive removal proceedings.

Romania Yes

Slovak Republic Yes I. The police unit which finds out that the foreigner is not able to prove his/her identity (e.g. is not in a possession of a travel document, or other identity document), is not able to prove the legality of his/her stay in the SR, to state the circumstances under which he/she entered the SR or is not able to prove the purpose of his/her stay will take him/her to police unit in line with the Act on the Police Corps (No. 171/1993). The police unit prepares an official record and prepares with the foreigner official minutes regarding his/her case. If the foreigner does not speak Slovak the interpreter will be provided. The minutes on the case contain: information on the foreigner, if he/she is in a possession of the identity document or other document which entitles him/her to stay in the SR, circumstances under which he/she arrived to the SR and the information that he/she is in the SR illegally. The foreigner is also checked in the information systems of the Ministry of Interior. If the police unit finds out that the foreigner is not in a possession of the identity document and is not able to trustworthily prove his/her identity by any other means it will produce evidence of his/her identity so he/she can not be substituted with other foreigner (takes the fingerprints, takes facial photograph, and other special marks). The identity examination is an administrative procedure. Third country national who was issued a decision on administrative expulsion and he/she did not leave the SR in the period given by the decision or after the expulsion has taken place he/she returns back to the SR in the period of the entry ban is committing a criminal act of obstructing the official decision as given by the Article 348 of the Criminal Code (No. 300/2005). II. and III. The act of the illegal border crossing is defined in the Article 116, paragraph 1a) of the Act on Residence of Aliens (No. 404/2011) and the act of illegal stay in the Article 118, paragraph 1 a) of the same Act. For the illegal border crossing the person can be fined with a fine in the sum of 800 EUR and in the sum of 165 EUR on the spot. For the illegal stay the person can be fined with a fine in the sum of up to 1600 EUR and in the sum of 165 EUR on the spot. The procedural side of the act of illegal stay and illegal border crossing as well as the court proceeding and imposition of the fine falls under the offence legislation in line with the Act on Offences (No. 372/1990). The proceeding is in the competences of the Police Corps- Bureau of Border and Aliens Police. The consequences for the third country national for illegal stay as well as illegal border crossing are realised in the form of decision on administrative expulsion and the entry ban or single entry ban in line with the Act on Administrative Proceedings (No. 71/1967).

Slovenia Yes I - 1) There is a clear distinction between identity verification and verification of the regularity of stay. Based on circumstances one or another or both of procedures may apply.



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Verification of regularity of stay is done in accordance with Article 11 of Schengen Border Code. Legality can be proven by documents and other means that clearly indicate legality of entry and stay. 2) In cases legality cannot be proved the TCN is subject to procedure related to illegal stay misdemeanor. It is both administrative and judicial procedure. A return decision shall be issued to the TCN. TCN has the right to appeal both against return decision and misdemeanor fine issued. 3) All the circumstances mentioned make a difference in procedure and consequences. If a return decision has been issued and the person has not respected it and left the country accordingly, Police shall issue a return decision with entry ban and remove the person. Fact of illegal border crossing makes the sanction different, although amount of respective fine is the same. II. Illegal stay is not a criminal offence. It’s a misdemeanor and fine is 500 to 1200 EUR. III. 1) Criminal offense of illegal border crossing is the following (quoted from Penal Code): Prohibited Crossing of State Border or Territory Article 308 (1) Whoever crosses the border of the Republic of Slovenia by force, or enters its territory illegally armed with weapons, shall be sentenced to imprisonment for not less than three months, and not more than three years and punished by a fine. (2) The same punishment shall be imposed on an alien who does not possess a residence permit for the Republic of Slovenia, or if he stays in its territory in the manner as referred to in the preceding paragraph, or resists a legal removal therefrom. (3) Whoever engages in the prohibited transit of aliens, without leave to enter or remain in the Republic of Slovenia, across the border of the Republic of Slovenia, or whoever transits aliens or helps to conceal them, or whoever is engaged in assisting a group of two or more such aliens to cross the border or the territory of the state against payment, shall be punished by a term of up to five years of imprisonment and by a fine. (4) An official who, by abusing his official position or rights, enables an alien illegal entry to the territory of the Republic of Slovenia or illegal stay therein, shall receive the penalty referred to in the preceding paragraph. (5) If a disproportionate property benefit has been gained for himself or a third person by the perpetrator committing offences referred to in paragraphs 3 or 4 of this Article, or if he acquires a work force without rights, or poses a threat to human life or health, or commits such acts as a member of a criminal association, he shall be sentenced to imprisonment for not less than one and not more than eight years and punished by a fine.



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(6) Whoever gains over or collects people with a view of illegal transfer, provides them with forged documents or transportation, or organizes illegal transfer in any other way, shall be sentenced to imprisonment for not more than five years and punished by a fine (7) The above paragraph shall also apply to criminal offences committed abroad, if the country where such offences have been committed has adopted, like the Republic of Slovenia, the common international legal obligation of preventing such criminal offences, regardless of where they are committed, and has determined such acts in its law in the same proper way as criminal offences. If the criminal offence has been committed in the territory of the European Union, in the application of paragraphs 2, 3, 4 and 5 of this Article the citizens of its Member States shall not be considered aliens. 2) A person who illegally crosses the border may be fined 500 to 1200 EUR.

Spain Yes I. 1) The identity verification procedure is established by law. According to Organic Law 1/1992, a person can be taken to a police station, if needed, in order to have his/her identity established taking the necessary steps without delay. There is no specific procedure for regularity verification, but it should be the immediate consequence of identity verification through consultation of the database on foreigners. Any initial determination of illegal stay can be challenged during the administrative return procedure. A return procedure can be started without the need of an arrest (in police premises) or a detention (in a detention centre). 2) It is an administrative procedure. Identity verification procedures are recorded in a log book, supervised by the judiciary and the prosecutor. Any further steps fall under the administrative return procedure, with the involvement of a lawyer to assist the irregularly staying third-country national and the possibility of judicial appeal. 3) In case of an existing entry ban or an illegal border crossing, the return procedure is a simplified one. The entry ban starts counting again from cero. In case of a pending removal procedure, it is enforced. If a voluntary return period has not been complied with, return can be directly enforced. II. Illegal stay is not a criminal offence. III. 1) Illegal crossing of the border is not a criminal offence. 2) n/a

Sweden Yes I. 1) In the Swedish Aliens ACT (chapter 10 section 1) that an alien over the age of 18 years may be detained if the aliens identity is unclear and the right of the alien to enter or stay in Sweden cannot be assessed anyway. The detention because of investigation may not be more than 48 hours. There is no right for public counsel but the TCN has the right to make contacts e.g legal representative. There are certain detention centres for foreigners (TCN) within the Migration Board. The police can also use their own detention centres. Aliens Act chapter 11 section 1 states that an alien who is being held in detention under this Act shall be kept in premises that have been specially



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arranged for this purpose. The Swedish Migration Board is responsible for such premises. 2) Aliens Act also states that activities that concern detention shall be organised in a way that results in the least possible infringement of the alien’s integrity and rights. The Swedish Migration Board is responsible for the treatment and supervision of an alien being held in detention. 3) See the French answer. The same applies to Sweden with the exemption that an extension of the ban may be imposed. II. The Swedish Aliens Act Chapter 20 section 1 says that a fine shall be imposed on a alien who is staying in Sweden intentionally or through negligence without having the prescribed permit and without the alien having applied for such a permit….. A fine between 20 – 400 Euro depending on the circumstances. III. 1) Yes, see above. 2) Fine of 20 – 400 Euros.

United Kingdom Yes I. 1) Identity verification and verification of the regularity of stay of a TCN differ depending on whether the person is detected at the border or within the UK. At the border, an immigration officer may examine a person to establish identity under the Immigration Act 1971 and whether or not the person should have leave to enter or stay in the UK. The person may be detained on site pending this examination and pending a decision to give or refuse leave to enter. Within the UK, verification only occurs where there is reasonable suspicion that the TCN is in the UK unlawfully. An immigration officer or police officer may arrest a person under the Immigration Act 1971 and take them into immigration detention (either at a police station or an immigration detention centre) whilst they conduct the verification (fingerprinting, photographing, searches of the person, searches of premises, checking against immigration and criminal databases) . 2) The procedure is both administrative and judicial. A judicial warrant must be obtained in order to enter premises to search for and arrest the TCN. A person may seek bail from detention either from a chief immigration officer or from an immigration judge. 3) If the TCN was previously subject to a deportation order, and that order (banning the person from re-entering the UK) is still extant, the TCN will be removed from the UK on that order and no fresh removal decision is required. Otherwise, the removal procedure does not vary depending on whether the person was, prior to this procedure, subject to an administrative removal order or not. The procedure that follows does not vary depending on whether the person illegally crossed the border or not. II. It is an offence under the Immigration Act 1971 to remain in the United Kingdom beyond the time limited by the leave that was granted to the person. Such a person is liable to a maximum of 6 months’ imprisonment or a fine of up to £5,000 or both. Can be administratively removed from the UK without being prosecuted for the criminal offence. Individuals may be the subject of a re-entry ban. The length of re-entry ban may be 1 year (if they depart voluntarily at their own expense), 2 years (if they depart voluntary but at public expense within 6 months of notification), 5 years (if they depart voluntary but at public expense after 6 months of notification), or



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10 years (if the departure is enforced). III. 1) Yes 2) Imprisonment for a maximum of 6 months or a fine of up to £5,000 or both .

Croatia Yes

Norway Yes

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