The Regulation on sanctioning of expulsion of foreigners who violate Vietnamese law

Published on 10 - 01 - 2022
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On 31/12/2021, the Government issued the Decree No. 142/2021/ND-CP stipulating the sanction of expulsion, measures of temporary detention and escort of violators according to administrative procedures and management of foreigners who violate Vietnamese law during deportation procedures.

This Decree provides for: Subjects of application and procedures for applying the expulsion sanction; rights and obligations of the person subject to the sanction of expulsion; measures to manage foreigners who violate Vietnamese law while carrying out deportation procedures and responsibilities of agencies and organizations in implementing the expulsion sanction. Subjects of application, procedures for temporary detention and escort of violators according to administrative procedures; cases of applying the measure of temporary detention or escort of violators according to administrative procedures; rights and obligations of the person subject to the measure of temporary detention or escort of violators according to administrative procedures.

In particular, the Decree stipulates the sanction of expulsion and management of foreigners who violate Vietnamese law during the time of carrying out deportation procedures. Specifically, individuals are 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, the penalty of expulsion shall be imposed as prescribed in Article 27 of the Law on Handling of Administrative Violations. The persons subject to the sanction of expulsion have the rights to: To know the reasons for their expulsion, receive the expulsion decision at least 48 hours before the execution; require to have an interpreter when working with competent agencies or persons; carry out the regime as prescribed in the Decree No. 65/2020/ND-CP dated June 10, 2020 regulating the organization and regimes for people staying at accommodation establishments while waiting for exit; bring their lawful property out of the Vietnamese territory; lodge complaints and denunciations in accordance with the law on settlement of complaints and denunciations.

The expelled person is obliged to fully comply with the provisions stated in the decision on sanctioning of administrative violations that apply the expulsion sanction; present identity documents at the request of immigration authorities; comply with the provisions of Vietnamese law, under the management of the police during the time of carrying out deportation procedures; quickly fulfill all civil, administrative and economic obligations as prescribed by law (if any); complete the necessary procedures to leave the Vietnamese territory.

Foreigners who violate Vietnamese law during the period of carrying out deportation procedures shall be subject to management measures in the following cases: When there are grounds to believe that, if necessary measures are not taken, the foreigner will evade or hinder the enforcement of the decision to sanction the expulsion; preventing that person from continuing to commit illegal acts.

The measures to manage foreigners who violate Vietnamese law during deportation procedures include: Restricting the movement of the managed person; designating the place of residence of the managed person; temporarily holding a passport or other identification document in lieu of a passport.

The temporary detention of people according to administrative procedures is only applied in the following cases: It is necessary to immediately prevent and stop acts of disturbing public order or causing injury to others. It is necessary to prevent and immediately stop the act of smuggling and illegally transporting goods across the border. To execute the decision to send to reformatory, compulsory education institution, compulsory detoxification establishment.

In addition, the temporary detention of people according to administrative procedures is also applied to determine drug addiction for illegal drug users; or applied to people who commit acts of domestic violence in violation of the decision to ban contact according to the provisions of the law on domestic violence prevention and control. To determine drug addiction for illegal drug users.

Regarding escorting violators, the Decree clearly states that violators who do not voluntarily comply with requests of competent persons but not due to objective obstacles or force majeure circumstances shall be escorted in the following cases: Being detained according to administrative procedures; sending them to or returning to reformatory schools, compulsory education establishments, compulsory detoxification establishments according to the provisions of Article 124 of the Law on Handling of Administrative Violations.

Also according to the Decree No. 142, in case the escorted person commits an act of force attack, the person on duty performing the escort has the rights to use force, tie, lock hands and feet, use weapons and a support tool as prescribed by law to control and neutralize the opposing behavior of the escorted person.

In case the escorted violator flees, the person on duty performing the escort must request the present people to cooperate in arresting; in case the subject is not immediately arrested, he must promptly report it to the head of the unit and contact the local authority where the incident occurs to have a plan to track down the escaped violator; at the same time, making a record on the escape of the escorted person, signed by the witness; if there are no witnesses, the reason must be clearly stated in the minutes.

If the escorted person suffers from an unexpected illness that requires timely emergency care, the person on duty performing the escort must quickly take him to the nearest medical examination and treatment establishment. During the emergency period at medical examination and treatment establishments, the person on duty carrying out the escort must have a plan to organize guarding and closely monitor the violator, not let him hide or freely contact with other people.

In case the escorted person dies unexpectedly, he must be taken to the nearest medical examination and treatment facility and immediately report it to the head of the unit, the investigating agency and the Procuracy where the incident occurred for carrying out the procedures as prescribed by law.

The Decree takes effect from January 1, 2022.

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