Explanatory Memorandum to COM(2016)881 - Use of the Schengen Information System for the return of illegally staying third-country nationals - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)881 - Use of the Schengen Information System for the return of illegally staying third-country nationals. |
|---|---|
| source | COM(2016)881  |
| date | 21-12-2016 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
Over the course of the last two years, the European Union has been working on simultaneously addressing the separate challenges of migration management, integrated border management of the EU's external borders and the fight against terrorism and crossborder crime. Effective information exchange amongst Member States, and between Member States and the relevant EU agencies, is essential to providing a robust response to those challenges and to building an effective and genuine Security Union.
The Schengen Information System (SIS) is the most successful tool for the effective cooperation of immigration, police, customs and judicial authorities in the EU and the Schengen associated countries. Competent authorities in the Member States such as police, border guards and customs officers need to have access to high quality information about the persons or objects they are checking, with clear instructions about what needs to be done in each case. This large-scale information system is at the very heart of Schengen cooperation and plays a crucial role in facilitating the free movement of people within the Schengen area. It enables competent authorities to enter and consult data on wanted persons, persons who may not have the right to enter or stay in the EU, missing persons – in particular children – and objects that may have been stolen, misappropriated or lost. SIS not only contains information about a particular person or object but also clear instructions for the competent authorities on what to do with that person or object once found.
In 2016, the Commission carried out a comprehensive evaluation1 of SIS, three years after the entry into operation of its second generation. This evaluation showed that SIS has been a genuine operational success. In 2015, national competent authorities checked persons and objects against data held in SIS on nearly 2.9 billion occasions and exchanged over 1.8 million pieces of supplementary information. Nonetheless, as announced in the Commission Work Programme 2017, building on this positive experience, the effectiveness and efficiency of the system should be further strengthened. To this end, the Commission is presenting a first set of three proposals to improve and extend the use of SIS as result of the evaluation while continuing its work to make existing and future law enforcement and border management systems more interoperable, following up on the ongoing work of the High Level Expert Group on Information Systems and Interoperability.
These proposals cover the use of the system (a) for border management, (b) for police cooperation and judicial cooperation in criminal matters, and (c) for the return of illegally staying third country nationals. The first two proposals together form the legal bases for the establishment, operation and use of the SIS. The proposal for the use of SIS for the return of illegally staying third country nationals supplements the proposal for border management and
Report to the European Parliament and Council on the evaluation of the second generation Schengen Information System (SIS II) in accordance with Art. 24 (5), 43 (3) and 50 (5) of Regulation (EC) No 1987/2006 and Art. 59 (3) and 66(5) of Decision 2007/533/JHA and an accompanying Staff Working
complements the provisions contained therein. It establishes a new alert category and contributes to the implementation and monitoring of Directive 2008/115/EC2.
Due to the variable geometry in Member States' participation in EU policies in the area of freedom, security and justice, it is necessary to adopt three separate legal instruments which will nonetheless work seamlessly together to enable the comprehensive operation and use of the system.
In parallel, with a view to enhancing and improving information management at EU level, in April 2016, the Commission began a process of reflection on 'Stronger and Smarter Information Systems for Borders and Security'3. The overarching objective is to ensure that competent authorities systematically have the necessary information from different information systems at their disposal. In order to achieve this objective, the Commission has been reviewing the existing information architecture to identify information gaps and blind spots that result from shortcomings in the functionalities of existing systems, as well as from fragmentation in the EU's overall architecture of data management. The Commission set up a High Level Expert Group on Information Systems and Interoperability to support this work, whose interim findings have also informed this first set of proposals as regards issues of data quality4. President Juncker's State of the Union address in September 2016 also referred to the importance of overcoming the current shortcomings in information management and of improving the interoperability and interconnection between existing information systems.
Following the findings of the High Level Expert Group on Information Systems and Interoperability, which will be presented in the first half of 2017, the Commission will consider a second set of proposals to further improve interoperability of SIS with other IT systems in mid-2017. The review of Regulation (EU) No 1077/20115 concerning the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) is an equally important element of this work and is likely to be the subject of separate Commission proposals also in 2017. Investing in swift, effective and qualitative information exchange and information management and ensuring the interoperability of EU databases and information systems is an important aspect of addressing current security challenges.
Against this background, the purpose of the present proposal is to improve and extend the use of SIS by making it obligatory for Member States' authorities to enter in SIS all return decisions issued in accordance with provisions respecting Directive 2008/115/EC, to allow their EU-wide visibility and thus enhance their enforcement. The proposal widens the scope of application of the current SIS by introducing a new alert category for return decisions.
The proposal for border management already contains the provisions concerning the entry and processing of alerts on the basis of entry bans issued in accordance with provisions respecting Directive 2008/115/EC in SIS. These measures build upon the Schengen acquis as they support the checks at the EU's external borders. The entry and processing of alerts related to return decisions issued in accordance with provisions respecting Directive 2008/115/EC in
2
common standards and procedures in Member States for returning illegally staying third-country
nationals (OJ L 348, 24.12.2008, p. 98).
COM(2016) 205 final of 6.4.2016.
Commission Decision 2016/C 257/03 of 17.6.2016.
establishing a European Agency for the operational management of large-scale IT systems in the area of
SIS support EU's common immigration policy and are therefore laid down in a separate instrument. The proposal for return builds on the general provisions on the establishment, operation and use of SIS provided for in the proposal on border management. Due to these close links it should be adopted, enter into force and apply at the same time as the border management instrument.
The proposal to extend the use of SIS to follow-up the return of illegally staying third-country nationals will support and strengthen the European Union actions towards an integrated, sustainable and holistic EU migration policy. The return of irregular migrants who do not have a right to stay in the EU to their home countries, in full respect of the principle of non-refoulement, is an essential part of our migration policy as stressed in the European Agenda on Migration6. However, the EU return system works imperfectly and is not sufficiently effective. Statistics available from Eurostat show that, during the last years, only approximately 40% of irregular migrants required to leave the EU departed effectively; in 2015, 553 395 third-country nationals were ordered to leave, however only 226 800 were effectively returned.
With the escalation of the migration and refugee crisis in 2015, the need to take effective steps to tackle irregular migration and increase the rate of return of irregular migrants rose considerably. That is why the Commission is implementing all measures announced in the EU Action Plan on Return7. These measures are necessary in order to secure public trust in the EU migration and asylum policy and to provide adequate support to persons in need of protection. Indeed, a more successful European system returning irregular migrants to their home countries goes hand-in-hand with the renewed efforts to protect those in need of protection.
To improve the efficiency of the EU's return policy, cooperation with countries of origin is essential. That is why in June 2016 the European Council concluded that the EU needs to put in place and swiftly implement the Partnership Framework of cooperation with individual countries of origin or transit based on effective incentives and adequate conditionality. The Commission is actively engaged to develop these partnerships. However, the EU's ability to return irregular migrants is not only linked to cooperation with countries of origin or transit. The challenges of returning irregular migrants also stem from internal obstacles in national return systems and especially the difficulties for the Member States to enforce return decisions.
In the EU Action Plan on Return and in the Communication on 'Stronger and Smarter Information Systems for Borders and Security'8 the Commission identified the need to better exploit the large-scale IT systems for the purpose of building a more effective return system. In its Conclusions of 25-26 June 2015, the European Council called for the inclusion of return decisions in SIS, with a view to enhancing their effectiveness.9 The Justice and Home Affairs Council confirmed this call in its conclusions of 8-9 October 201510.
Currently there is no EU-wide system for sharing information about return decisions issued by Member States in accordance with provisions respecting Directive 2008/115/EC, and for
COM(2015) 240 final.
COM(2015) 453 final.
COM(2016) 205 final.
European Council Conclusions of 25 and 26 June 2015 (ST 22 2015 INIT).
Council Conclusions on the future of the return policy, available at:
monitoring whether third-country nationals subject to these decisions have in fact left the territory of the Member States. This situation makes it easier for irregular migrants to avoid or prevent the enforcement of an existing decision by simply moving to another Member State. In such situations, public authorities of the Member State apprehending the irregular migrant are not aware that a return decision had already been issued in accordance with provisions respecting Directive 2008/115/EC by another Member State. The apprehending Member State would therefore need to re-launch return procedures from scratch, further prolonging the illegal stay and delaying the return of the irregular migrant.
The visibility of other Member States' return decisions through a SIS alert, coupled with the possibility for the exchange of supplementary information via a national single point of contact, such as the SIRENE Bureaux, can help address this information gap. Having greater knowledge as to the individual circumstances of the person concerned empowers Member State authorities to take the most appropriate action in a swift and timely manner. Awareness of all circumstances related to the irregular migrant in question may justify, for instance, not granting a period of voluntary departure or to use measures to prevent the risk of absconding. Moreover, awareness of the existence of a return decision issued by another Member State in accordance with provisions respecting Directive 2008/115/EC would facilitate mutual recognition of these decisions amongst migration authorities, in compliance with the EU acquis11; an option that is seldom used due to the current lack of information.
In addition, Member States are often unaware of the number of irregular migrants that comply with return decisions. This is the case particularly for those irregular migrants who leave the EU voluntarily, for example without obtaining voluntary return assistance or without being subject to a forced removal. With the systematic inclusion of return decisions issued in accordance with provisions respecting Directive 2008/115/EC in SIS and with the appropriate action taken following a hit on a return alert, SIS can help verify compliance with such return decisions and better inform the actions of competent authorities. When a third-country national subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC will be checked while exiting the territory of the Member States, the competent national authorities will be able to report departure and confirm the voluntary or enforced compliance with the obligation to return.
The confirmation of return will in turn reduce the need for public authorities to invest resources in tracing irregular migrants who have actually already left the EU. In case of a third-country national whose departure has not been confirmed, and following a notification from SIS that the period of voluntary departure has expired, public authorities will also be aware that follow-up actions must be taken in order to trace the individuals concerned, to ensure their removal and issue an entry ban in accordance with Article 11(1) of Directive 2008/115/EC. This system will provide an additional tool to Member States for meeting their obligation to take all necessary measures to ensure the enforcement of return decisions in an effective and proportionate manner, in accordance with Article 8(1) of Directive 2008/115/EC. A more effective monitoring of the compliance with return decisions issued in accordance with provisions respecting Directive 2008/115/EC would help bring to light a number of cases of non-compliance, which can be expected to lead to an increased number of returns and entry bans.
11
Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals, OJ L 149, 2.6.2001, p. 34; and Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of
SIS will therefore help provide more reliable data and statistics on the number of return decisions issued in accordance with provisions respecting Directive 2008/115/EC, and on the rate of compliance.
Difficulties in identifying irregular migrants and the lack of valid travel documents issued by the third-country of destination of the returnees are major obstacles to successful return. Illegally staying third-country nationals may be holding identification or travel documents when they are apprehended and subject to return procedures in a Member State, but they may get rid of such documents at a later stage to hinder return or to move illegally to another Member State. In these cases, the information on the identification or travel document at disposal of the Member State that first apprehended the illegally staying third-country national can facilitate identification and issuance of a valid travel document by the third country of destination to migrants who absconded to another Member State. For this purpose, it is necessary to allow the transfer of relevant data available in SIS to the competent authorities of third countries under strict conditions. Such transfer must be limited to the information that is strictly necessary in order to ensure the identification and re-documentation of the migrant, and shall comply with the provisions of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data12, notably Chapter V of that Regulation that sets detailed rules and conditions for the transfers of personal data to third countries or international organisations. When such transfer is conducted by the Member States that did not introduce the information on the document in the SIS alert and is not the owner of such data, the previous authorisation of the Member State that introduced the information in SIS should be required.
This proposal will also enhance rules on the consultation process that Member States must follow when they encounter alerts on return, or are willing to enter such alerts, that collide with other Member States' decisions, such as for instance a valid residence permit. Such rules should prevent the emergence of, or resolve, the conflicting instructions that these situations may create, while offering clear guidance to end-users on the actions to be taken in such situations and to Member States authorities on whether an alert should be deleted.
In order to work correctly, the designed system requires systematic checks at exit at the external borders, in order to ensure that all third-country nationals concerned will be reported as having left the territory. The proposal13 amending Regulation (EU) 2016/399 (Schengen Borders Code)14 aims at aligning the obligation to systematically check third-country nationals against databases on entry and exit.
Considering the transnational nature and the challenges in ensuring effective cross border information exchange, the recommendations in the European Interoperability Framework are of particular interest for these proposals and should be respected when designing or delivering digital public services. The European Interoperability Framework is currently undergoing a revision, and the new version is in the process of adoption.
12
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p.
1).
COM(2015) 670 final.
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union
Code on the rules governing the movement of persons across borders (Schengen Borders Code) OJ L
• Consistency with existing policy provisions in the policy area
This proposal complies with and builds upon the provisions of Directive 2008/115/EC which sets common standards and procedures for returning illegally staying third-country nationals. It seeks to create a greater level of compliance with and increase the visibility of return decisions issued by the competent authority in accordance with provisions respecting Directive 2008/115/EC. By making it mandatory to enter such decisions in SIS, this proposal will support the enforcement of these decisions.
• Consistency with other Union policies
This proposal is closely linked with other existing Union policies and Commission legislative proposals, namely:
(a) An effective EU return policy, so as to contribute to and enhance the EU system to
Member States. This proposal would contribute to reducing incentives to irregular
migration to the EU, one of the main objectives of the European Agenda on Migration15;
(b) Eurodac and Dublin system as the introduction of return decisions in SIS will support Member States in following up whether rejected asylum seekers have left the territory of the Member States and returned to a third-country in compliance with a return decision. It will also complement the Commission proposal16 to extend the use of Eurodac to identify illegally staying third-country nationals who do not claim asylum and who may move around the EU undetected;
(c) Entry/Exit system as it will complement the Commission proposal17 on the Entry/Exit system and its use to identify and detect overstayers (also within the territory of the Member States);
(d) ETIAS18 which proposed a thorough security assessment, including a check in SIS, of visa-exempted third-country nationals who intend to travel in the EU;
(e) Schengen Borders Code as it will complement the amendment of the Schengen Borders Code related to the obligation to systematically check third-country nationals against databases on exit;
(f) Commission proposal on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks and repealing Regulation (EC) No 1987/2006 as it will complement the provisions related to entering entry bans in SIS following the return of the third-country national concerned.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
Article 79(2)(c) Treaty on the Functioning of the European Union empowers the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, to adopt measures in the field of illegal immigration and unauthorised residence, including
COM(2015) 240 final. COM(2016) 272 final. COM(2016) 194 final. COM(2016) 731 final.
removal and repatriation of persons residing without authorisation. Hence, this Article is the suitable legal basis for using SIS for the return of illegally staying third-country nationals.
• Variable geometry
With regard to variable geometry, this proposal follows a comparable regime to Directive 2008/115/EC.
According to Article 4 of Protocol 22 on the position of Denmark annexed to the Treaties, Denmark shall decide, within a period of six months after the Council has decided on this Regulation, whether it will implement this proposal, which builds upon the Schengen acquis, in its national law.
With regard to the United Kingdom and Ireland, the Return Directive presents a hybrid character, as reflected in its recitals (26) and (27). It follows that both Protocol 19 on the Schengen acquis integrated in the framework of the European Union annexed to the Treaties, and Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaties, apply to this proposal. Pursuant to the latter, non-Schengen protocol, the United Kingdom and Ireland are not taking part in the adoption of this Regulation and are not bound by it or subject to its application; they may however notify to the Council that they wish to take part in this instrument.
On the basis of the respective agreements associating those countries with the implementation, application and development of the Schengen acquis, Iceland, Norway, Switzerland and Liechtenstein are to be bound by the Regulation proposed.
• Subsidiarity (for non-exclusive competence)
The aim of the proposal is to establish a system for sharing information about return decisions issued in accordance with provisions respecting Directive 2008/115/EC by the Member States in view of facilitating their enforcement and to monitor the compliance of illegally staying third-country nationals with their obligation to return. This cannot be sufficiently achieved by the Member States acting alone. There is currently no system in place allowing the systematic sharing of information on return decisions issued by the Member States in accordance with provisions respecting Directive 2008/115/EC; therefore, national authorities cannot be aware of return decisions issued in respect of third-country nationals by other Member States, including where irregular migrants are apprehended while moving illegally across the EU and transiting on their territories. The aim of this proposal can, therefore, be better achieved by the European Union.
• Proportionality
Article 5 of the Treaty on the European Union states that action by the Union shall not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this EU action must enable the proposal to achieve its objective and be implemented as effectively as possible.
The proposed Regulation intends to facilitate the enforcement and monitoring of return decisions issued in accordance with provisions respecting Directive 2008/115/EC in relation to illegally staying third county nationals, in view of ensuring a more effective and successful return policy. It therefore provides the Member States with an additional tool for meeting their obligation to take all necessary measures to ensure the enforcement of return decisions in an effective and proportionate manner in accordance with Article 8(1) of the Return Directive.
To achieve these objectives, and in accordance with the principle of proportionality as set out in Article 5 of the Treaty on the European Union, this Regulation does not go beyond what is necessary in order to achieve those objectives.
• Choice of the instrument
In order to establish uniform and harmonised procedures that are directly applicable, it is appropriate to adopt this act in the form of a Regulation. In addition, this proposal relates to the use of a centralised European information system. Therefore, the rules on its use need to be established in a Regulation.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- CONSULTATIONS
- Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
- Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011
- Currently there is no EU-wide system for sharing information about return decisions issued by Member States in accordance with provisions respecting Directive 2008/115/EC, and for
- 6 7 8 9 10
- 13 14
- Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union
- return third-country nationals who have no right to stay in the territory of the
- 15 16 17 18
- enforce decisions on behalf of other
- within-the-framework-of-the-schengen-information-system-an-eu-wide-system-for-exchanging-data-
- Due to the complementary nature of this proposal the budgetary implications are dealt with separately and in an independent financial statement addressing only the establishment of this
- Scope (Article 1)
- Entering alerts on return (Article 3)
- Categories of data (Article 4)
- Effective and timely exchange of supplementary information (Article 5)
- Confirmation of return (Article 6)
- Non-compliance with an obligation to return (Article 7)
- 2) passing back the third-country national to the issuing Member State under an existing bilateral agreement in compliance with Article 6(3) of the Directive 2008/115/EC, or
- Consultation procedure (Article 8)
- Retention and deletion of alerts (Articles 6, 8 and 9)
- Where the return has not been confirmed or where the alert on return has not been deleted due
- Transfer of data to third countries (Article 10)
- Access rights (Article 12)
- Applicability of the provisions of the SIS Regulation on border management (Article 13)
ANDIMPACTASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
In accordance with the SIS II Regulation19 and Council Decision 2007/533/JHA20, three years after its entry into operation, the Commission carried out an overall evaluation of the central SIS II system as well as of the bilateral and multilateral exchange of supplementary information between Member States. The evaluation specifically targeted the review of the application of Article 24 of the SIS II Regulation, establishing the conditions for issuing alerts for the purpose of refusing entry and stay in respect of third-country nationals. The proposals resulting from the evaluation are included in the Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks and the Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters.
Furthermore, in accordance with Article 19 of the Return Directive 2008/115/EC, the Commission published a Communication on EU Return Policy in 201421, which reports on the application of the Directive 2008/115/EC. It concluded that the potential of SIS in the field of return policy should be further enhanced; it indicates that the review of SIS II is an opportunity to improve consistency between the return policy and SIS II, as well as to suggest introducing an obligation on Member States to enter a refusal of entry alert in SIS II for entry bans issued under the Return Directive.
Stakeholder
consultations
Feedback and suggestions on the potential use of SIS for return were sought from relevant stakeholders, including delegates to the SISVIS Committee and the Return Directive Contact Group. Discussions took place in several meetings of the SISVIS Committee (10 May 2016 and 30 June 2016) and the Return Directive Contact Group (16 November 2015, 18 March and 20 June 2016). On 5 February 2016 a joint workshop with delegates to the SISVIS Committee and the Return Directive Contact Group was held. The workshop was also attended by representatives of EU Agencies such as the European Union Agency for Fundamental Rights.
19
Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, p.
4).
Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 205, 7.8.2007, p. 63).
20
21
• Collection and use of expertise
In October 2015 the Commission launched an external study22 with the purpose of assessing the feasibility and technical and operational implications of setting up within the context of SIS an EU wide system for exchanging data on and monitoring compliance with return decisions issued in accordance with provisions respecting Directive 2008/115/EC. The study was finalised in April 2016.
• Impact assessment
No impact assessment was conducted. However, the proposal is based on the results of the feasibility study referred to above.
The study concluded that entering return decisions issued in accordance with provisions respecting Directive 2008/115/EC as alerts in SIS would be technically feasible and result in tangible benefits, especially with regard to the visibility of information across Member States and streamlining follow-up actions.
It would support authorities to:
– enforce the decision in case of non-compliance;
– monitor for each decision whether the obligation to return has been complied with;
– verify whether a third-country national who is found illegally on the territory is
subject to a decision issued by another Member State;
Member States;
– identify illegally staying third-country nationals based on information about
enforceable decisions;
– collect statistics on complied and non-complied decisions.
On the other hand, the study concluded that a number of necessary technical and operational changes would impact current practices, organisation and infrastructures. The implications of introducing return decisions issued in accordance with provisions respecting Directive 2008/115/EC in SIS include new/amended operational procedures, additional data categories in alerts on return and new SIS functions (such as the function to notify the issuing authority when the period for voluntary departure has expired). The changes would require the establishment of adequate infrastructure in Member States to enter and manage alerts on return in SIS and additional storage capacities in the Central SIS.
A workload analysis revealed that all players concerned (especially border guards and police officers and the authorities issuing return decisions in accordance with provisions respecting Directive 2008/115/EC) would face additional workload resulting from having to manage alerts on return and follow up an increased number of hits. Finally, the study pointed to the need for a minimum level of harmonisation across Member States when dealing with persons who are already subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC by another Member State.
Study on the feasibility and implications of setting up within the framework of the Schengen Information System an EU-wide system for exchanging data on and monitoring compliance with return decisions (https://bookshop.europa.eu/en/study-on-the-feasibility-and-implications-of-setting-up-
22
• Fundamental rights
This proposal develops and improves an existing system. It widens the scope of application of the current SIS by introducing a new alert category for return decisions. Its impact on fundamental rights is, as a result, limited as the solid functioning of the system has already been proven and important and effective safeguards have already been put in place. Nevertheless, as the proposal involves the processing of personal data, there is a potential impact on an individual's fundamental rights. This has been considered, and safeguards have been put in place in order to respect the principles set out in the Charter of Fundamental Rights of the European Union, and in particular Article 8.
This proposal is supplementary to the proposal for border management which forms, together with the proposal for police cooperation and judicial cooperation in criminal matters, the legal basis for the establishment, operation and use of SIS. Therefore the safeguards contained in the border management proposal related to the protection of fundamental rights, and in particular data protection and the rights of the data subject, equally apply to this proposal.
Furthermore, provisions have been put in place in order to ensure that return alerts will not lead to taking measures for the enforcement of return decisions issued in accordance with provisions respecting Directive 2008/115/EC when the period for voluntary departure is still running or when the decision has been suspended or the removal has been postponed (Article 3(2) and (3)).
The elements of the return decision issued in accordance with provisions respecting Directive 2008/115/EC to be entered in SIS are limited to those that are strictly necessary to allow competent authorities to identify the third-country national concerned, carry out return if necessary, and verify that the obligation to return has been complied with (Article 4).
Data will only be kept in SIS as long as required to achieve the purpose of return. As a consequence, it will be required that the issuing Member State deletes the data immediately after receipt of the confirmation of return (Article 6), if the decision is no longer valid, if the person obtained EU citizenship or the citizenship of a State whose nationals are beneficiaries of the right of free movement within the Union or if the person who is the subject of the alert can demonstrate that he or she has left the territory of the Member States in compliance with the return decision issued in accordance with provisions respecting Directive 2008/115/EC (Article 7).
The new provisions on SIS will make more visible the situations where third-country nationals subject to a return decision issued in accordance with provisions respecting Directive 2008/115/EC by a Member State hold at the same time an authorisation or right to stay granted by another Member State. In such cases it shall be mandatory for national authorities to engage in a consultation procedure. Where necessary the alert on return will also be deleted (Article 8).
4. BUDGETARYIMPLICATIONS
The present proposal widens the scope of application of the current SIS by introducing a new alert category for return decisions issued in accordance with provisions respecting Directive 2008/115/EC and functions for creating, updating and deleting alerts on return. Furthermore, it introduces a new functionality for automatically notifying to the issuing Member States that the period for voluntary departure on their alerts has expired.
Due to the complementary nature of this proposal the budgetary implications are dealt with separately and in an independent financial statement addressing only the establishment of this
The financial statement attached to this proposal reflects the changes required for establishing this new alert category. The cost-estimate of EUR 3.6 million includes costs for the technical upgrade of SIS for the purpose of return. The cost estimates concerning the overall development of the Central SIS, the communication infrastructure and the upgrades of the national SIS systems are not included in the Legislative Financial Statement attached to this proposal but they are set out in detail in the Legislative Financial Statement attached to the Commission proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks and the Commission proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters.
A re-programming of the remainder of the Smart Borders envelope of the Internal Security Fund is planned in order to carry out the upgrades and implement the functionalities foreseen in this proposal. The ISF Borders Regulation23 is the financial instrument where the budget for the implementation of the Smart Borders package has been included. Article 5 of the Regulation provides that EUR 791 million shall be implemented through a programme for setting up IT systems supporting the management of migration flows across the external border under the conditions laid down in Article 15. Out of the above-mentioned EUR 791 million, EUR 480 million is reserved for the development of the Entry-Exit System and EUR 210 million for the development of the European Travel Information and Authorisation System (ETIAS). The remainder will be partly used to cover the costs of the changes foreseen in the current proposal.
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The review and monitoring provisions included in Articles 53 i and (8) of the Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks are applicable.
• Detailed explanation of the specific provisions of the proposal
The proposal aims at setting out the conditions and procedures for the use of SIS for the return of illegally staying third-country nationals in respect of whom a return decision has been issued in accordance with provisions respecting Directive 2008/115/EC by the competent national authorities. The proposal requires entering and processing data in SIS, in the form of alerts, on third-country nationals, subject to a return decision, and exchanging supplementary information on such alerts. The use of SIS for return is aimed at supporting immigration authorities to follow up and enforce the return of third-country nationals who have no right to stay in the Member States, to help to prevent and deter irregular migration and to enhance information sharing and cooperation between immigration authorities.
To ensure the effective functioning of the system, it is key that all return decisions issued by Member States in accordance with provisions respecting Directive 2008/115/EC are introduced in SIS. This means that Member States should enter alerts on (a) return decisions issued in application of Article 6(1) of the Directive 2008/115 and (b) decisions stating an
Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external
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obligation to return issued to irregular migrants subject to a refusal of entry at a border crossing point or those apprehended in connection with the irregular crossing of the external border and who did not receive an authorisation to stay (Article 2(2)(a) of Directive 2008/115/EC), as well as (c) decisions stating an obligation to return issued as a criminal sanction (Article 2(2)(b) of Directive 2008/115/EC).
Article 3 sets out the purpose and rules for entering alerts on return in SIS to allow the competent authorities to verify that the obligation to return has been complied with and to support the enforcement of return decisions issued in accordance with provisions respecting Directive 2008/115/EC. The alert should be without delay entered as soon as the decision has been issued to the illegally staying third-country national concerned, in order to allow the verification referred to above. The alert should indicate if a period for voluntary departure is still running or if a decision has been suspended or removal has been postponed.
Where there are no reasons to believe that it would undermine the purpose of return procedures, voluntary return should be preferred over forced return and a period for voluntary departure should be granted to the returnee, in accordance with Article 7 of Directive 2008/115/EC. The duration of the period for voluntary departure, and any prolongation thereof, should be indicated in the alert to allow public authorities to decide whether it is appropriate to take action in the individual case.
Article 4 establishes the data elements that can be contained in a return alert which are similar to those included in Article 20 of the proposal for border management.
The data in relation to the period for voluntary departure, whether the return decision issued in accordance with provisions respecting Directive 2008/115/EC has been suspended or the enforcement of the decision has been postponed are specific for alerts on return.
Effective and timely cooperation and exchange of supplementary information between Member States requires the set-up of single point of contact. Article 6 provides that each Member State must designate an authority responsible for the exchange of supplementary information on alerts entered on third-country nationals within the context of return and illegal stay. The provisions of the SIRENE Manual referred to in Article 8 of the proposal for a Regulation on the establishment, operation and use of the SIS in the field of border checks are applicable to the designated authority.
In order to meet the requirements laid down in Article 8 of the above-mentioned proposal concerning the continuous availability and timing for replying to requests (within maximum 12 hours), it is necessary that Member States ensure that the authorities competent for taking decisions related to the stay of third-country nationals on their territory are closely involved in the exchange of supplementary information.
Article 6 introduces the obligation on Member States to confirm the departure of the third-country national subject to an alert on return to the Member State (or authority) that entered the alert; this applies also when the same Member State is responsible for the issuing and the enforcement of the alert. This provision allows the authorities issuing and enforcing return decisions issued in accordance with provisions respecting Directive 2008/115/EC to verify
This provision requires systematic checks at exit in order to ensure that all third-country nationals concerned will be reported as having left the territory. The proposal amending Regulation No 562/2006 (Schengen Borders Code) aims at aligning the obligation to systematically check third-country nationals against databases on entry also to exit.
Article 7 sets out the provisions in cases of non-compliance with the obligation to return. The notification referred to in paragraph 1 will support the Member States in fulfilling their obligations in accordance with Article 8(1) of Directive 2008/115/EC with regard to third-country nationals who have not complied with the obligation to return.
Paragraph 2 sets out the procedures to deal with situations where a third-country national subject to an alert on return is identified and apprehended in another Member State. The follow-up procedures are to be carried out in accordance with the EU return acquis and other provisions of national and EU legislation applicable to the individual case, which include:
1) issuing a return decision in accordance with provisions respecting the Directive 2008/115/EC;
2) passing back the third-country national to the issuing Member State under an existing bilateral agreement in compliance with Article 6(3) of the Directive 2008/115/EC, or
3) recognising the return decision of the issuing Member State in application of Directive 2001/40/EC.
Article 8 of this proposal sets out procedures necessary for preventing and solving divergences or conflicting decisions between Member States. Mutual consultation of competent national authorities can help prevent and solve such conflicting situations, while taking account of the interest of the parties concerned. To be effective, such consultation should be speedily carried out.
Paragraph 2 of Article 6 establishes that alerts on return need to be deleted following the return of the third-country national concerned. This paragraph complements the provisions on the moment in which alerts related to entry bans should take effect in SIS as established in Article 24(3) of the proposal for a Regulation on the establishment, operation and use of the SIS in the field of border checks. Member States should take all necessary measure to ensure that there is no time-gap between the moment of departure and the activation of the alert on the entry ban in SIS.
Article 9 includes further rules on deletion of alerts. In addition to the situations covered under Article 6 and Article 8, where deletion of alerts takes place following the return of the third-country national concerned or following a consultation procedure, an alert on return should also be deleted where the return decision issued in accordance with provisions respecting Directive 2008/115/EC has been withdrawn or annulled. The second part of paragraph 1 covers the situation where the alert needs to be deleted due to the fact that the departure of the person was not duly registered.
In the context of the further improvement of the SIS, the opportunity to keep trace in SIS of return decisions after the return was enforced will be explored. This information could be useful if a third country national re-entered the territory of the Member States and is found as illegally staying in a different Member State than the one who issued the first return decision.
period for refusal of entry alerts (Article 34 of the proposal for a Regulation on the establishment, operation and use of the SIS in the field of border checks).
Article 10 contains specific rules concerning transfer of data to third countries under strict conditions.
In the Member States, the authorities responsible for issuing return decisions in accordance with provisions respecting Directive 2008/115/EC may vary significantly. Depending on the reason for illegal stay (e.g. refusal of asylum, visa overstay, expire of a residence permit), several authorities may be responsible for issuing such decisions, including judicial authorities when return is ordered as the result of an appeal against a refusal of an authorisation or right to stay, or as a criminal sanction. Such authorities should therefore be able to access SIS in order to enter, update, delete and search data. In addition, the authorities in charge of the identification of third-country nationals during, border, police and other law enforcement checks should have the right to access the data in SIS.
Accordingly, Article 12 provides for appropriate access to alerts on return to be given to:
– national authorities responsible for identifying third-country nationals on the
territories of the Member States referred to in Article 29(1) (a), (b), (c) and (d) of Regulation (EU) 2018/xxx [border checks]. The authorities responsible for border checks need to have access to the data for the purpose of identification of third-country nationals who are the subject of a return decision and who exit the territory of the Member States. Police and other law enforcement authorities are responsible in accordance with national law for the identification and return of persons staying on the national territory. Immigration authorities are responsible for taking decisions (including return decisions) on the entry and stay of third-country nationals;
– national judicial authorities (Article 29(2) of Regulation (EU) 2018/xxx [border
checks]) should have access to the data in SIS if they are competent in accordance with national law for taking decisions on the entry and stay of third-country nationals;
– institutional users as referred to in Article 30 to 31 of Regulation (EU) 2018/xxx
[border checks] (Europol and the European Border and Coast Guard Agency) within the context of their competences in the European Migrant Smuggling Centre (Europol) and in return-related tasks (European Border and Coast Guard Agency).
Finally, Article 13 provides that the general provisions of SIS as included in the proposal for a Regulation on the establishment, use and operation of the SIS in the field of border checks apply also to the processing of data entered for the purpose of this proposal, in particular the provisions concerning the responsibilities of the Member States and the Agency, the entry and processing of alerts, the conditions for access and retention of alerts, data processing, data protection, liability and monitoring and statistics.