Chương II Nghị định 142/2021/NĐ-CP: Xử phạt trục xuất và quản lý người nước ngoài vi phạm pháp luật việt nam trong thời gian làm thủ tục trục xuất

Chapter II

ON DEPORTATION AND MANAGEMENT OF FOREIGNERS VIOLATING VIETNAMESE LAW WHILE DEPORTATION IS IN PROGRESS

Article 5. Subjects of deportation (deportees)

Individuals being foreigners who commit administrative violations within the territory, contiguous zone, exclusive economic zone and continental shelf of the Socialist Republic of Vietnam; on board an aircraft bearing Vietnamese nationality or a seagoing vessel flying the Vietnamese flag, depending on the seriousness of the violation, shall face the penalty of deportation as prescribed in Article 27 of the Law on Handling of Administrative Violations.

Article 6. Authority to impose deportation

Agencies or persons having authority to impose the deportation shall comply with Point dd Clause 5 and Clause 7 Article 39 of the Law on Handling of Administrative Violations.

Article 7. Rights and obligations of the deportee

1. Rights of the deportee:

a) Know the reason for the deportation, receive the deportation decision at least 48 hours before the execution;

b) Require an interpreter when working with a competent agency or person;

c) Receive statutory benefits as prescribed in Decree No. 65/2020/ND-CP dated June 10, 2020 on benefits for people staying at accommodation establishments during the waiting period for exit;

d) Bring their lawful property out of the Vietnamese territory;

dd) Lodge complaints and file whistleblowing reports in accordance with the law on settlement of complaints and whistleblowing reports.

2. Obligations of the deportee:

a) Fully comply with the provisions stated in the decision on penalty for administrative violations including the deportation;

b) Present identification papers at the request of immigration authorities;

c) Comply with Vietnamese law and abide by the management of the police whilst deportation in in progress;

d) Quickly fulfill all civil, administrative and economic obligations as prescribed by law (if any);

dd) Complete the necessary procedures to leave the Vietnamese territory.

Article 8. Request for imposition of deportation

1. Within 2 working days, if the violation-identifying agency deems that the foreigner’s illegal act has sufficient grounds for deportation, it must send documents, exhibits and temporary detention facilities (if any) related to the violation to the immigration authority of the provincial-level police station where the foreigner registers his/her permanent residence or temporary residence or where the violation occurs to compile a request for imposition of the deportation.  For violations identified by central agencies or specialized units of the Ministry of Public Security, the violation files shall be sent to the Immigration Department for preparation of requests for imposition of deportation.

2. Within 3 working days from the day on which the violation file is received, the immigration authority of the provincial-level police department and the specialized division of the Immigration Department shall complete the request for imposition of deportation.  The request includes:

a) Summary of background and illegal act of the person proposed to impose the deportation;

b) Administrative offence notice of the person proposed to impose the deportation;

c) Documents and evidence pertaining to the administrative violation;

d) Documents on the administrative penalties applied (for repeated violations or recidivism);

dd) Written request for imposition of deportation.

3. The preparation of a request for imposition of the deportation on the violating foreigner as an additional penalty specified in Clause 2, Article 21 of the Law on Handling of Administrative Violations shall comply with Clauses 1 and 2 of this Article.

Article 9. Decision on imposing deportation

1. Within 2 working days after receiving the written request for imposition of deportation from the immigration authority of the provincial-level police department or the specialized division of the Immigration Department, Director of the provincial-level Public Security, and the Director of the Immigration Department must consider issuing a decision on imposing deportation on the foreigner who commits the administrative violation.  If there are insufficient grounds for imposing deportation, they must immediately notify the agency that identified the violation.

2. The decision on imposing deportation must clearly state the following:

a) Place and date of the decision;

b) Legal grounds for promulgation of the Decision;

c) Administrative offence notice, verification results, written explanations of the person proposed to impose the deportation;

d) Full name and position of the decision maker;

dd) Full name, date of birth, nationality, occupation, passport number or passport alternative of the deportee;

e) The illegal act of the deportee; aggravating circumstances, extenuating circumstances;

g) Terms of the applicable legal document;

h) Primary penalty, additional penalty(ies), remedial measures (if any);

i) The right to complain or initiate a lawsuit against the decision;

k) Effect of the Decision; the time limit for enforcement of the decision; destination of deportation; the place of enforcement of the decision; compulsory residence of the foreigner whilst deportation in in progress;

l) Full name and signature of the decision maker;

m) The agency responsible for enforcing the decision.

3. The decision on imposing deportation must be sent to the deportee and the Ministry of Foreign Affairs of Vietnam, the consular office, the diplomatic mission of the country of which the deportee is a citizen or country that person last resided before coming to Vietnam before the execution of the deportation as prescribed in Article 84 of the Law on Handling of Administrative Violations.  The decision on deportation must be presented in both Vietnamese and English.

4. The decision on imposing deportation on the violating foreigner as an additional penalty specified in Clause 2, Article 21 of the Law on Handling of Administrative Violations shall comply with Clauses 1, 2 and 3 of this Article.

Article 10. Enforcement of the decision on imposing deportation

1. The police agency and the person competent to impose the deportation shall enforce the decision on imposing deportation; and also be responsible for transferring all relevant dossiers and papers, material evidences and means of administrative violations (if any) to the agency receiving the decision on imposing deportation for enforcement according to the Law on Handling of Administrative Violations.

2. For cases where the deportee deliberately refuses to receive the penalty decision, the competent person shall make a record of the refusal to receive the decision and send it to the Ministry of Foreign Affairs of Vietnam, the consular authority, diplomatic mission of the country of which the deportee is a citizen or the country in which he last resided before coming to Vietnam.

3. Foreign individuals subject to the deportation must abide by the penalty decision as prescribed in Clause 1, Article 73 of the Law on Handling of Administrative Violations 2012.

4. The decision on imposing deportation on the violating foreigner as an additional penalty specified in Clause 2, Article 21 of the Law on Handling of Administrative Violations shall comply with Clauses 1, 2 and 3 of this Article.

Article 11. Postponing the enforcement of the decision on imposing deportation

1. The postponement of the enforcement of the decision on imposition of the deportation shall be effected in the following cases:

a) Having a serious illness, requiring emergency care or for other health reasons that it is impossible to enforce the decision on imposition of the deportation, certified by a hospital or medical examination and treatment establishment at the district level or higher;

b) Must perform civil, administrative and economic obligations as prescribed by law.

2. Authority to postpone the enforcement of the decision on imposing deportation:

a) At the request of the Director of the provincial-level Public Security Department or the head of the foreigner management unit of the Immigration Department or the head of the professional division of the Immigration Department of the Ministry of Public Security, the Director of the Immigration Department of the Ministry of Public Security shall consider and issue a decision to postpone the enforcement of the decision on imposing the deportation in cases where the decision on deportation is issued by the Director of the Immigration Department of the Ministry of Public Security;

b) At the request of the head of the immigration authority, the Director of the provincial-level Police Department shall consider and issue a decision to postpone the enforcement of the decision on imposition of the deportation in cases where the Director of the provincial-level Police Department is responsible.

3. The postponement of enforcement of the decision on imposing deportation on the violating foreigner as an additional penalty specified in Clause 2, Article 21 of the Law on Handling of Administrative Violations shall comply with Clauses 1, 2 and 3 of this Article.

4. When the grounds for postponement no longer exist, the decision on imposing deportation shall continue to be enforced.

Article 12. Dossier of imposition of the deportation

1. A dossier of imposition of the deportation includes:

a) Decision on imposing deportation;

b) Administrative offence notice;

c) Request for imposition of deportation as per Article 8 of this Decree;

d) A copy of the passport or a copy of another identification document in lieu of the passport of the deportee;

dd) Papers certifying that other obligations have been fulfilled (if any);

e) Other relevant documents.

2. The immigration authority of the provincial-level Police Department or the specialized division of the Immigration Department of the Ministry of Public Security shall have to compile a dossier of imposition of the deportation as prescribed in Clause 1 of this Article.

3. The dossier on imposing deportation on the violating foreigner as an additional penalty specified in Clause 2, Article 21 of the Law on Handling of Administrative Violations shall comply with Clauses 1, 2 and 4 of this Article.

4. Dossier of enforcement of deportation must be numbered and kept at a competent agency.

Article 13. Management of foreigners violating Vietnamese law while deportation is in progress

1. The head of the specialized division of the Immigration Department, the head of the Immigration Department of the provincial-level Police Department (where the request for deportation is made) proposes to the Director of the Immigration Department or the Director of the provincial-level Public Security Department decide to adopt management measures to foreigners whilst deportation is in progress.

2. Foreigners violating Vietnamese law while deportation is in progress shall be subject to management measures in the following cases:

a) When there are grounds to believe that, if necessary measures are not taken for management, that person will evade or obstruct the enforcement of the decision on imposing deportation;

b) To prevent that person from continuing to commit illegal acts.

3. Measures to manage foreigners who violate Vietnamese law during deportation procedures

a) Restrict the movement of the person under management measure;

b) Designate the place of residence of the person under management measure;

c) Temporarily seize the passport or other identification document in lieu of passport.

4. The imposition of management measure on the foreigner violating Vietnamese law must be clearly stated in the decision on imposition of management measure on foreigners who violate Vietnamese law whilst the deportation procedures are in progress, including the following:

a) Place and date of the decision;

b) Full name and position of the decision maker;

c) Full name, date of birth, nationality, occupation, passport number or passport alternative of the person subject to management measures;

d) Management measures (specify management measures);

dd) Effect of the decision on imposition of management measures; the time limit for application of the management decision; the scope and location of the travel restriction (for the measure specified at Point a, Clause 3 of this Article); compulsory residence of the person subject to the management measures (for measures specified at Point b, Clause 3 of this Article); reasons for temporary seizure of passports or other identification papers in lieu of passports (for the measure specified at Point c, Clause 3 of this Article);

e) Full name and signature of the decision maker;

g) The agency responsible for enforcing the decision.

5. The appointment of a place of residence of the foreigner who violates Vietnamese law whilst the deportation is in progress shall be done as follows:

a) Staying at accommodation establishments managed by the Ministry of Public Security;

b) At another accommodation establishment designated by the Ministry of Public Security.

6. The imposition of the accommodation measure to foreigners who violate Vietnamese law while deportation is in progress at accommodation establishments managed and designated by the Ministry of Public Security shall be implemented in the following cases:

a) Foreigners who violate Vietnamese law whilst deportation is in progress do not have passports or substitutes for passports, have not met sufficient eligibility requirements to carry out the deportation (airfare tickets; visas, passports, passport alternative, etc.);

b) The foreigner has no place of residence or has their stay duration expired;

c) The foreigner violates Clause 2 of this Article or fails to comply with management and supervision measures of the competent agencies;

d) The foreigner has committed illegal acts or there are grounds to believe that such person may commit illegal acts while waiting for exit;

dd) The foreigner has an act of running away, preparing to flee or another act that causes difficulties for the enforcement of the deportation decision;

e) The foreigner has an infectious disease prescribed in the law on prevention and control of infectious diseases, medical isolation must be adopted;

g) The foreigner suffers from mental illness or other diseases that cause loss of cognitive ability or behavior control ability;

h) The foreigner voluntarily applies to the accommodation establishment.

7. It is prohibited to use temporary detention houses under administrative procedures, criminal detention houses, detention camps or prisons to manage foreigners who violate Vietnamese law whilst deportation is in progress.

Article 14. Statutory benefits for foreigners violating Vietnamese law while deportation is in progress

1. The statutory benefits for foreigners subject to the deportation while deportation is in progress shall comply with Chapter II of Decree No. 65/2020/ND-CP dated June 10, 2020 on management organization and regimes for people staying at accommodation establishments while waiting for exit.

2. Statutory benefits for persons in stay as prescribed in Decree No. 65/2020/ND-CP dated June 10, 2020 on management and allowances for people staying at accommodation establishments during the waiting period for exit.

a) In case the deportee is unable to pay for expenses, the Immigration Department of the Ministry of Public Security or the provincial-level Public Security Department (where the management dossier is prepared) shall request the diplomatic mission, the consular office of the country of which he is a national or agency, organization or individual that invites the foreigner to enter Vietnam or apply for visa extension for the foreigner to pay.

b) In case the above-mentioned agency, organization or individual could not cover the expenses, the Immigration Department of the Ministry of Public Security or the provincial-level Public Security Department where the management dossier is made shall use the fund from state budget to cover the expenses.

Article 15. Responsibilities of the Immigration Department of the Ministry of Public Security

1. Responsibilities of the Immigration Department of the Ministry of Public Security:

a) Make a dossier of enforcement of the decision on imposition of the deportation, including:  The decision on imposing deportation; a copy of the passport or other identification document in lieu of the passport of the deportee; documents certifying that other obligations have been fulfilled (if any); other relevant documents;

b) Send the Decision on imposition of the deportation, the Decision on postponement of the enforcement of the decision on imposing deportation and the Decision on imposition of management measure on the foreigner who violates the law whilst deportation is in progress to Ministry of Foreign Affairs to notify the diplomatic or consular mission of the country of which the person is a national; and also send a copy of the decision to the deportee for enforcement;

c) Collect and receive necessary information and documents for enforcement of the decision on imposing deportation;

d) Coordinate with relevant agencies to ensure the exercise of rights and fulfilment of obligations of the deportee;

dd) Enforce the deportation according to the decision.

2. Responsibilities of the provincial-level police department where the request for the deportation is made:

a) Make a dossier of enforcement of the decision on imposition of deportation;

b) Managing the deportee during the time of making the request for the deportation as prescribed in Article 13 of this Decree;

c) Hand over the deportee to the immigration authority upon request;

d) Coordinate with the immigration authority in implementing the decision on imposing deportation;

dd) Coordinate with relevant agencies to ensure the exercise of rights and fulfilment of obligations of the deportee.