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Revision of the Schengen information system for the return of illegally staying third-country nationals

In “Civil Liberties, Justice and Home Affairs - LIBE”

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For a brief overview of the key points of the adopted text and its significance for the citizen, please see the corresponding summary note.

The Schengen Information System (SIS II) is a large-scale information system supporting external border control and law enforcement cooperation in the Schengen States which enables police and border guards to enter and consult alerts on certain categories of wanted or missing persons and lost or stolen property.

Responding to the impact of increased irregular migration and security threats on EU external borders, the European Commission has presented several proposals on strengthening EU external borders’ management. After identifying major SIS II shortcomings - suboptimal functionalities, gaps in the system’s architecture, fragmented policy frameworks, and limited interoperability - in its  April 2016 Commission Communication,  in December 2016, the Commission presented three legislative proposals to reinforce the SIS in the fight against terrorism and cross-border crime. The proposal for a regulation of the European Parliament and of the Council on the use of the SIS for the return of illegally staying third country nationals extends the use of the SIS in the field of return.

The main changes proposed by the Commission are: 

  • Alerts on return decisions: the proposal introduces an obligation on Member States to enter into the SIS all return decisions issued in accordance with the provisions of the Return Directive. Member States will be obliged to create alerts on return decisions in respect of a) third-country nationals staying illegally on their territory; b) third-country nationals who are subject to a refusal of entry at a border crossing point or when apprehended in connection with the irregular crossing of the external border and who did not receive an authorisation to stay; and c) third-country nationals subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. The alerts will indicate if a period for voluntary departure is still running, or if a decision has been suspended or the removal has been postponed. A new functionality will allow the issuing Member State to receive an automatic notification when the period for voluntary departure has expired.
  • New procedures: each Member State will designate an authority responsible for the exchange of supplementary information on alerts related to return and illegal stay. Member States will be obliged to confirm the departure of the third-country national subject to an alert on return, to the Member State that entered the alert. The proposal specifies 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. It clarifies the rules on the consultation process in the case of conflicting decisions between Member States, such as when return decisions clash with decisions on issuing residence permits. Retention and deletion rules are established in order to make sure that there in no time-gap between the moment of deletion of a return alert following the departure of the third-country national and the activation of the alert on the entry ban.
  • Access to data: access to SIS data will be given to all Member State authorities responsible for issuing return decisions in accordance with the provisions of the Return Directive, including judicial authorities and authorities responsible for identifying third-country nationals during border, police or other law enforcement checks. Europol and the European border and coast guard agency will also be able to access data in the SIS, if this is necessary for carrying out their tasks.
  • Fundamental rights: since the proposal involves the processing of personal data which may impact individuals' fundamental rights, it puts in place safeguards in order to respect the principles set out in the Charter of Fundamental Rights of the European Union, and in particular Article 8 (protection of personal data) thereof. Data will be kept in the SIS as long as required to achieve the purpose of return. Member States will be obliged to delete the data immediately after receiving confirmation of return, or if the return decision is no longer valid.

In the European Parliament, the proposal has been assigned to the Committee on Civil Liberties, Justice and Home Affairs (LIBE). The rapporteur for the proposal, Jeroen Lenaers, presented a draft report in June 2017. The final report was adopted in the LIBE committee on 10 November 2017 and was tabled for the plenary. The rapporteur welcomed the Commission’s proposal and recommended to make the national Sirene bureaux responsible for the efficient and swift exchange of supplementary information in connection to alerts on return between Member States. The Committee on Foreign Affairs (AFET) also presented an opinion on the proposal in July 2017. In November 2017, the Parliament confirmed the decision to enter into interinstitutional negotiations.  The first/single reading in Parliament is indicatively scheduled for October 2018.

The Council adopted a mandate to start interinstitutional negotiations in November 2017.

Trilogues on the SIS package of proposals took place on 16 November 2017, 13 December and 7 February 2018 22 March 2018 and 24 April 2018. Key points of discussion at the last trilogue concerned the entry of data in the SIS and the exchange of supplementary information on returns. A further trilogue took place on 22 May 2018. On 12 June 2018 the EP and the Council announced they had reached an informal agreement on the text, which remains to be formally adopted by the LIBE Committee and the Council. On 12 June 2018, the EP and the Council announced a provisional agreement on the text which was adopted by Parliament in a vote on 24 October 2018 and by the Council on 19 November 2018.  The adopted act was signed by the Presidents of the EP and of the Council on 28 November 2018.     

References:

Author: Nikolai Atanassov, Members' Research Service, legislative-train@europarl.europa.eu

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As of 20/11/2019.