S.L. 217.12 Art. 3Return decision.

(1) Without prejudice to the provisions of sub-regulations (2),

(3) and (4), the Principal Immigration Officer shall issue a return decision to any third country national staying illegally in Malta.

(2) The Principal Immigration Officer shall require a third country national staying illegally in Malta under any of the provisions of article 5 of the Act and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State, to go to the territory of that other Member State immediately:

Provided that, the third country national shall be issued with an order to return, whereupon he may be detained subject to an assessment of the risk of absconding, until such time as his transfer is effected. All procedural rights in relation to return as provided in these regulations shall apply mutatis mutandis: Provided further that the Principal Immigration Officer shall issue a return decision if the third-country national does not comply with the above-mentioned requirement or his immediate departure is justified on grounds of public policy or national security, subject to the provisions of sub-regulations (3), (4), and (7).

(3) The Principal Immigration Officer may refrain from issuing a return decision to a third-country national staying illegally in Malta if the third-country national concerned is taken back by another Member State under a bilateral agreement or arrangement existing on the date of the entry into force of these regulations: Provided, however, the Principal Immigration Officer may decide to take back into Malta a third-country national staying illegally in another Member State, in which case after taking back the third-country national concerned, the Principal Immigration Officer shall apply the provisions of sub-regulation (2).

(4) Without prejudice to sub-regulation (5), where a third-country national staying illegally in Malta is the subject of a pending procedure for renewing his residence permit or other THIRD-COUNTRY NATIONALS

authorisation offering a right to stay, the Principal Immigration Officer shall consider refraining from issuing a return decision, until the pending procedure is finished:

Provided that the third-country national, while awaiting the permit, shall notify the competent authority of his presence in Malta and the competent authority shall acknowledge such notification.

(5) Nothing in this regulation shall be construed as preventing the Principal Immigration Officer from ending a legal stay and issuing a return decision and,or a decision on a removal and,or entry ban in a single administrative decision.

(6) A return decision accompanied by a removal order shall be executed on the third-country national leaving the Schengen area from Malta if he fails or ceases to comply with any of the conditions, including an implied condition, under which he was granted leave to land or to land and remain in Malta or was granted a residence permit.

(7) The Principal Immigration Officer shall not issue a return decision where a third-country national staying illegally in Malta is granted a residence permit or a right to stay on compassionate or humanitarian grounds:

Provided that where a return decision has already been issued, it shall be withdrawn or suspended for compassionate or humanitarian reasons and subject to the renewal of the above-mentioned residence permit or right to stay.

(8) The Principal Immigration Officer shall provide, upon request, a written or oral translation of the main elements of a return decision and information on the legal remedies in a language the third-country national may reasonably be supposed to understand.