Article 1 Subject matter and scope
1. This Regulation establishes a return border procedure. It applies to third-country nationals and stateless persons whose application has been rejected in the context of the asylum border procedure provided for in Articles 43 to 54 of Regulation (EU) 2024/1348 (the ‘asylum border procedure’). It also provides for temporary specific rules on the return border procedure in situations of crisis as defined in Article 1(4) of Regulation (EU) 2024/1359. This Regulation also amends Regulation (EU) 2021/1148, with the purpose of allowing the financing of support under that Regulation for solidarity actions within the context of Regulation (EU) 2024/1351. 2. Temporary measures adopted pursuant to Chapter III of this Regulation shall meet the requirements of necessity and proportionality, be appropriate to achieving their stated objectives and ensuring the protection of the rights of the applicants and be consistent with the obligations of the Member States under the Charter and international law. 3. The measures in Chapter III of this Regulation shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances. Following a request, Member States may apply the measures provided for in Chapter III only to the extent provided for in the Decision referred to in Article 4(3) of Regulation (EU) 2024/1359.
Article 2 References to Regulation (EU) 2024/1348
For those Member States not bound by Regulation (EU) 2024/1348, references in this Regulation to provisions in Regulation (EU) 2024/1348 shall be understood as references to equivalent provisions which they might have introduced in their national law.
Article 3 Definitions
For the purposes of this Regulation, the following definitions apply: (a) ‘application for international protection’ or ‘application’ means application for international protection or application as defined in Article 3, point (12), of Regulation (EU) 2024/1348; (b) ‘applicant’ means applicant as defined in Article 3, point (13), of Regulation (EU) 2024/1348.
Article 4 Return border procedure
1. Third-country nationals and stateless persons whose application has been rejected in the context of the asylum border procedure shall not be authorised to enter the territory of the Member State concerned. 2. Member States shall require the persons referred to in paragraph 1 to reside for a period not exceeding 12 weeks in locations at or in proximity to the external border or transit zones. Where a Member State cannot accommodate such persons in those locations, it may resort to the use of other locations within its territory. The 12-week period shall start from the date on which the applicant, third-country national or stateless person no longer has a right to remain and is not allowed to remain. The requirement to reside at a particular location in accordance with this paragraph shall not be regarded as authorisation to enter into or stay on the territory of a Member State. The conditions in those locations shall meet the standards equivalent to those of the material reception conditions and healthcare in accordance with Articles 19 and 20 of Directive (EU) 2024/1346 of the European Parliament and of the Council ( 16 ) as they apply to persons still considered to be applicants. 3. Article 3, Article 4(1), Article 5, Article 6(1) to (5), Article 7(2) and (3), Articles 8 to 11, Article 12, Article 14(1), Article 15(2) to (4) and Articles 16 to 18 of Directive 2008/115/EC shall apply for the purposes of this Article. 4. Where a return decision cannot be enforced within the maximum period referred to in paragraph 2, Member States shall continue return procedures in accordance with Directive 2008/115/EC. 5. Without prejudice to the possibility for them to return voluntarily at any time, persons as referred to in paragraph 1 shall be granted a period for voluntary departure unless there is a risk of absconding, or if their application in the context of the asylum border procedure has been rejected as manifestly unfounded, or if the person concerned is a risk to public policy, public security or the national security of the Member States. The period for voluntary departure shall be granted only upon request and it shall neither exceed 15 days nor confer a right to enter the territory of the Member State concerned. For the purposes of this paragraph, such persons shall surrender any valid travel document in their possession to the competent authorities for as long as necessary to prevent absconding. 6. Member States that, following the rejection of an application in the context of the asylum border procedure, issue a refusal of entry in accordance with Article 14 of Regulation (EU) 2016/399 of the European Parliament and of the Council ( 17 ) , and that have decided not to apply Directive 2008/115/EC in such cases pursuant to Article 2(2), point (a), of that Directive, shall ensure that the treatment and level of protection of the third-country nationals and stateless persons subject to a refusal of entry are in accordance with Article 4(4) of Directive 2008/115/EC, and are equivalent to the treatment and level of protection set out in paragraph 2 of this Article and in Article 5(4) of this Regulation.
Article 5 Detention
1. Detention may be imposed only as a measure of last resort if it proves necessary on the basis of an individual assessment of each case and if other less coercive measures cannot be applied effectively. 2. Persons as referred to in Article 4(1) of this Regulation who were detained during the asylum border procedure, who no longer have a right to remain and who are not allowed to remain may continue to be detained for the purpose of preventing their entry into the territory of the Member State concerned, of preparing their return or of carrying out the removal process. 3. Persons as referred to in Article 4(1) of this Regulation who were not detained during the asylum border procedure, who no longer have a right to remain and who are not allowed to remain may be detained if there is a risk of absconding within the meaning of Directive 2008/115/EC, if they avoid or hamper the preparation of return or the removal process or if they pose a risk to public policy, public security or national security. 4. Detention shall be maintained for as short a period as possible, and for only as long as a reasonable prospect of removal exists, and while arrangements therefor are in progress and are executed with due diligence. The period of detention shall not exceed the period referred to in Article 4(2) of this Regulation and, where a consecutive detention is issued immediately following a period of detention as provided for under this Article, that period of detention shall be included in calculating the maximum periods of detention set out in Article 15(5) and (6) of Directive 2008/115/EC. 5. By 12 December 2024, the European Union Agency for Asylum established by Regulation (EU) 2021/2303 of the European Parliament and of the Council ( 18 ) shall, in accordance with Article 13(2) of that Regulation, develop guidelines on various practices alternative to detention, that could be used in the context of a border procedure.
Article 6 Measures applicable to the return border procedure in a situation of crisis
1. In a situation of crisis as defined in Article 1(4) of Regulation (EU) 2024/1359 and in relation to illegally staying third-country nationals or stateless persons whose application has been rejected in the context of the asylum border procedure pursuant to Article 11(3), (4) and (6) of Regulation (EU) 2024/1359, who have no right to remain and who are not allowed to remain, Member States may derogate as follows: (a) by way of derogation from Article 4(2) of this Regulation, Member States may prolong the maximum period during which those third-country nationals or stateless persons are to be kept at the locations referred to in that Article by an additional period of a maximum of six weeks; (b) by way of derogation from Article 5(4) of this Regulation, the period of detention shall not exceed the period referred to in point (a) of this paragraph, and shall be included in calculating the maximum periods of detention set out in Article 15(5) and (6) of Directive 2008/115/EC. 2. Paragraph 1 of this Article shall also apply to applicants, third-country nationals and stateless persons subject to the asylum border procedure whose application has been rejected before the adoption of the Council Implementing Decision referred to in Article 4(3) of Regulation (EU) 2024/1359 and who have no right to remain and who are not allowed to remain after the adoption of that Implementing Decision. 3. Organisations and persons permitted under national law to provide advice and counselling shall have effective access to applicants held in detention facilities or present at border crossing points. Member States may impose limits to such actions where, by virtue of national law, such limits are objectively necessary for the security, public order or administrative management of a detention facility, provided that access is not thereby severely restricted or rendered impossible.
Article 7 Procedural rules
Where a Member State considers itself to be in a situation of crisis as defined in Article 1(4) of Regulation (EU) 2024/1359, it may submit a request to apply the derogations provided for in Article 6 of this Regulation. Where a Member State submits such a request, Articles 2 to 6 and Article 17(3) and (4) of Regulation (EU) 2024/1359 shall apply, as relevant. Where a procedure with a view to obtaining a derogation has already been initiated pursuant to Article 2 of Regulation (EU) 2024/1359, Member States may submit a request to apply the derogations provided for in Article 6 of this Regulation in the context of that procedure.
Article 8 Specific provisions and guarantees
A Member State applying the derogation provided for in Article 6 shall duly inform third-country nationals or stateless persons concerned in a language which the third-country nationals or stateless persons understand, or are reasonably supposed to understand, about the measures applied and the duration of the measures.
Article 9 Amendments to Regulation (EU) 2021/1148
Regulation (EU) 2021/1148 is amended as follows: (1) in Article 2, the following point is added: ‘(11) “solidarity action” means an action, the scope of which is set out in point (b) of Article 56(2) of Regulation (EU) 2024/1351 of the European Parliament of the Council ( *1 ) , funded through financial contributions provided by Member States, referred to in Article 64(1) of that Regulation. ( *1 ) Regulation (EU) 2024/1351 of the European Parliament and of the Council of 14 May 2024 on asylum and migration management, amending Regulations (EU) 2021/1147, and (EU) 2021/1060 and repealing Regulation (EU) No 604/2013 ( OJ L, 2024/1351, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1351/oj ).’;" (6) Annex VI is amended as follows: (a) in Table 1, point I, the following code is added: ‘030 Solidarity actions’; (b) Table 3 is amended as follows: (i) codes 005 and 006 are replaced by the following: ‘005 Special Transit Scheme referred to in Article 17 006 Actions covered by Article 85(2) of Regulation (EU) 2018/1240’; (ii) the following codes are added: ‘007 Actions covered by Article 85(3) of Regulation (EU) 2018/1240 008 Emergency assistance 009 Solidarity actions’.