The EU Court of Justice rules on the Schengen Conundrum: a non-EU citizen with expulsion order in one Member State and a valid residence permit in another Member State

Professors Elspeth Guild, Queen Mary University of London and Kingsley Napley, and Steve Peers, University of Essex

What happens if a non-EU citizen has a residence permit from one Member State, but another Member State wants to expel him? The Court of Justice addressed this issue for the first time in its ruling last week in the case of E.

Background

This issue is complicated because there are two different relevant sources of EU law, which have not been linked very clearly. First of all, Article 25 of the Schengen Convention, as amended in 2010, states that if a Member State considers issuing a residence permit or long-stay visa, it shall search the Schengen Information System (SIS), which (among other things) contains a list of non-EU citizens banned from entry into the EU. Each listing is called an ‘alert’. If there is an alert on the person concerned, the Member State that wants to issue the residence permit or long-stay visa shall consult the Member State which issued the alert and ‘take account of its interests’, granting a residence permit or or long-stay visa only for ‘substantive reasons…notably on humanitarian grounds for by reason of international commitments’. If a residence permit or long-stay visa is issued, the alert in the SIS must be withdrawn, but the Member State which issued it can keep the person concerned on a national list of alerts. There’s also an obligation to check national records of long-stay visas or residence permits before issuing alerts.

A similar rule applies the other way around: if it turns out that an alert has been issued for a non-EU citizen who holds a residence permit or long-stay visa from another Member State, the Member State which issued the alert must consult the Member State which issued the residence permit or long-stay visa, to see if there are ‘sufficient reasons’ for withdrawing the permit. In these cases there is more discretion for the State which had already granted residence: there is no threshold to justify continuing the residence permit in force. If the residence permit or long-stay visa is not withdrawn, again the State issuing the alert must withdraw it from the SIS, but can keep the person on a national list of people banned from entry. It’s this second rule which was at issue in the E case.

But the Schengen rules concern only SIS alerts based on entry bans, not the issue of expulsion or the entry bans as such. Those issues are dealt with by the Returns Directive, which in principle requires Member States to expel non-EU citizens who are present irregularly. Usually they must be expelled to non-EU countries, but there’s an exception if they have a residence permit or other right to stay issued by a Member State. In that case they must go to that other Member State immediately. If they don’t comply, or if their immediate departure ‘is required for reasons of public policy or national security’, then they can be expelled directly to a non-EU country.

The Returns Directive also requires Member States to issue EU-wide entry bans in many cases where expulsion decisions have been issued. However, it does not expressly set out the obvious implication that this means an alert must be issued in the SIS. A Commission proposal from 2016 fills this gap. That proposal also incorporates the current rules on consultation where there is a conflict between an alert and a residence permit or long-stay visa, with some amendments. This proposal is likely to be agreed soon, as both the European Parliament and the Council adopted their negotiation positions on it late last year. A parallel proposal on use of the SIS at borders would also regulate the link between the Returns Directive and the SIS in its Article 24, and furthermore repeal Article 25 of the Schengen Convention. It remains to be seen whether the recent judgment might impact the discussions of the legislators on these proposals.

The Facts

A Nigerian national, E, who held a valid residence permit issued by Spain and had lived there for 14 years (and had family ties there) was convicted of a narcotics offence in Finland and sentenced to five years imprisonment (subsequently commuted to a suspended sentence). The Finnish authorities ordered E’s immediate expulsion to Nigeria on grounds of public order and national security together with an entry ban on his return. In accordance with their obligations under Article 25 of the Schengen Convention, the Finnish authorities contacted their Spanish counterparts to consult on whether there were sufficient reasons to withdraw the residence permit. The Spanish authorities did not respond.

On a second request by the Finnish authorities, their Spanish counterparts asked for a copy of the judgment convicting E (which the Finnish authorities sent). Thereafter, and following two unsuccessful attempts to consult the Spanish authorities, it seems that the Finnish authorities sought to carry out their order. In the meantime, E became irregularly present in Finland as he had stayed there more than 90 days out of the previous 180, which is the limit on movement of non-EU citizens (including those holding a residence permit from another Member State) under the Schengen system.  E appealed and the Finnish Supreme Administrative Court stayed the proceedings and asked the Court of Justice to clarify whether Article 25 CISA permits the expulsion to Nigeria of E without the completion of the mandatory consultations with the Spanish authorities.

The issue was complicated by the fact that Article 25 of the Schengen Convention on its face is designed to resolve conflicts between Member States regarding conflict between residence permits and SIS alerts. There is no obvious place for the individual in the process. So the Finnish court also asked whether E could rely on Article 25 CISA at all.

The Court’s reasoning

The first question the Court had to resolve was when consultations between States must take place. The Court had regard to the objective of Article 25 of the Schengen Convention. In its view this objective is ‘to avoid a contradictory situation in which a third-country national is both holder of a valid residence permit issued by a Contracting State and the subject of an alert for the purposes of refusing entry in the Schengen Information System’ (para 38). This objective must be read in conjunction with the principle of loyal cooperation in Article 4(3) TEU which means, according to the Court, that the consultation procedure should be initiated as quickly as possible (para 39). For this reason, the Court found that when a state is contemplating issuing an expulsion decision and entry ban on a third country national holding a valid residence permit from another Member State, the consultation should start as soon as possible and does not need to be delayed until a SIS alert has been made.

The Court decided the third and fourth questions together – rephrasing them as the issue of the failure to respond by the authorities of another Member State and what if any inferences the expelling Member State is entitled to draw as a result.  The first thing the Court noted is that the Schengen system only applies to short visits of 90 days out of every 180. Residence permits on the other hand are issued mainly under national law (para 41 – surprising considering how much of EU migration law has been made subject to Directives). As noted above, the Returns Directive in principle requires Member States to expel all non-EU citizens who are not (or no longer) lawfully present, but where the person concerned has a valid residence permit in another Member State, he or she must be entitled to travel to the Member State which issued the residence permit. He or she cannot be expelled to a third country (or his or her country of origin), except where he or she fails to return to the other Member State, or on grounds of national security or public policy (para 45).

So how to interpret the latter exception? The Court reminded the Finnish authorities that in determining whether a third country national is a public policy or national security risk, the ‘Member State is required to assess the concept of ‘risk to public policy’, within the meaning of Article 7(4) of Directive 2008/115 on a case-by-case basis, in order to ascertain whether the personal conduct of the third-country national concerned poses a genuine and present risk to public policy, bearing in mind that the mere fact that that national has been criminally convicted is not sufficient by itself to present such a risk’ (para 49). This refers to a prior judgment on the voluntary departure rules in the Returns Directive, discussed here; it’s striking that there’s a high threshold to apply the ‘public policy’ clause.  

Clearly, although the facts are a matter for the national court, the EU Court possibly had doubts about whether the conviction of E met the requirements for expulsion to a non-EU country. The Court acknowledged that the Finnish authorities could issue an alert (entry ban) against E but they would have to withdraw it if the Spanish authorities did not withdraw E’s residence permit. The Court recognised that the Spanish authorities had failed to respond to the requests of their Finnish counterparts in a reasonable period of time. But the consequences of that failure are not meted out on the individual. Instead the Court held that so long as the residence permit had not been withdrawn, irrespective of the failure of the Spanish to comply with their duties under the consultation procedure, the Finnish authorities are under an obligation to withdraw their alert to stop re-entry. At that point the Finnish are free to put the third country national’s details on their own national alert system to prevent re-entry into Finland, but this does not have EU wide consequences. (Note that the proposed new legislation on returns and the SIS would set a deadline to reply to consultation requests, but would still not expressly determine what happens if the Member State does not reply in time).

Finally, the Court addressed the first question – could E rely on the provisions of the Schengen Convention to prevent his expulsion to Nigeria, or are those provisions only legally binding (and accessible) to States? The Court found in favour of E – he is entitled to rely on the consultation procedure which gives rise to legal effects of importance to him (para 57). The reasoning of the Court was that as the consultation procedure is set out in a clear, precise and unconditional manner it is capable of giving rise to rights for individuals. Further, if in the consultation procedure, the state which issued the residence permit decides to maintain it, that also gives rise to a clear, precise and unconditional obligation on the expelling Member State to withdraw any alert to prevent re-entry into the Schengen area which it may have put in place (though it can keep a national re-entry ban in place) (para 59).

Commentary

This is a very interesting, if rather complex case. Three things are worth noting from it. First, as the Court has done in the case of the Dublin III Regulation, it has found that administrative provisions of EU laws which govern what states are supposed to do with people produce legal effects on which the affected people may rely. The individual can rely on EU law even where it is written in terms of inter-state procedures. The requirement is the same as that for direct effect – the provision must be clear, precise and unconditional.

Secondly, the Court gives priority to the residence permit which has not been withdrawn over the expulsion decision and entry ban. So long as a Member State does nothing to withdraw a residence permit, another Member State cannot expel outside the Union the third country national except on limited grounds (but can oblige him or her to go to the Member State which issued the residence permit). It does not matter that the Member State which issued the residence permit has failed to comply with the rules on consultation.

Thirdly, the complex intersection of the Schengen Convention, an agreement among Member States originally outside the scope of EU law and only integrated in an incomplete manner by the Amsterdam Treaty in 1999, and EU law proper – the regulations and directives – moves in the direction that the EU adopted measures are gradually replacing the provisions of the Convention. There is no ‘backward’ movement whereby Member States can ‘recover’ flexibility under the Convention which has been ruled out by subsequent EU law provisions. Indeed, this judgment demonstrates that EU law principles have prevailed over the intergovernmental nature of the Schengen Convention, not the other way around.

Barnard & Peers: chapter 26

JHA4: chapter II:3

Photo credit: The Real Agenda

Bringing the Panopticon Home: the UK joins the Schengen Information System

 

Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.  

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in the Schengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1^st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’s decision completed that process, giving the UK access to SIS II data starting from March 1^st. The UK can actually use that data, and enter its own data into the SIS, from April 13^th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decision which regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposes and giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25