Green light to smart borders and overstayers systematic tracking
On 9 December 2017, The Official Journal of the European Union has published the Regulation (EU) 2017/2226 of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States (i.e. Schengen external borders) and determining the conditions for access to the EES for law enforcement purposes.
The Regulation concerns short stays (i.e. stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period) and applies to both categories, third-country nationals visa-required and visa-exempt.
Before being issued a residence permit, third-country nationals, family members of EU nationals and nationals of a third-country enjoying the right of free movement equivalent to that of Union citizens, are as well concerned.
The EES represents a Central European System will collect identity data, record date and place of entry/refusal of entry and exit, and replace the passport stamping.
The EES will improve the efficiency of the external border controls, and inter alia systematically identify overstayers. It must be noted that where the usual data retention period will be three years following the date of the exit/refusal of entry, overstay records, will be stored for a period of five years following the date of expiry of the period of authorised stay.
With regard to third-country nationals authorised to switch short stay to long stay pursuant to Article 20(2) of the Convention implementing the Schengen Agreement, the competent authority that extended the authorised stay shall add the data regarding the period of extension of the authorised stay to the latest relevant entry/exit record.
The Commission shall decide the date from which the EES is to start operations, after being tested by the European Agency for the operational management of large-scale information systems, in cooperation with the Member States.
Is there a right to a visa under EU law?
In a recent judgment (C‑403/16), the European Court of Justice has upheld the rights determined by the EU law in the context of short stay visa applications.
The case at issue concerns a Schengen visa application lodged in Morocco and rejected by the Consul of the Republic of Poland, on ground of lack of certainty that the applicant would leave Poland before the visa’s expiry date.
The judgment has confirmed that the competent authorities of the Member States cannot refuse to issue a uniform visa by relying on a ground not provided for by the Visa Code, and ruled in favour of the right to an appeal procedure against decisions refusing visas, granting a judicial appeal at a certain stage of the proceedings.
However, the ECJ upheld that “in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts”.
About a more nuanced position than the Advocate General Bobek has expressed. The latter has clearly suggested that “There is no right to a visa under EU law”.
In the light of the ruling in C‑403/16, other ECJ case law, and Member States’ case law and policy, the following rights are granted to applicants for short stay uniform visas:
- Right to have an application fairly processed, exclusively relying on the grounds provided by the Visa Code.
- In case of visa refusal, right to appeal under the procedural rules provided by the national legislation of each Member State, in accordance with the principles of equivalence and effectiveness. A judicial appeal must be granted.
Merely a right to a visa under EU law, cannot be invoked.