Regulation (EU) 2018/1861 of the European Parliament and of the CouncilShow full title

CHAPTER V U.K. ALERTS FOR REFUSAL OF ENTRY AND STAY ON THIRD-COUNTRY NATIONALS

Article 20 U.K. Categories of data

1. Without prejudice to Article 8(1) or to the provisions of this Regulation providing for the storage of additional data, SIS shall contain only those categories of data which are supplied by each Member State, as required for the purposes laid down in Articles 24 and 25.

2. Any alert in SIS which includes information on persons shall contain only the following data:

(a) surnames;

(b) forenames;

(c) names at birth;

(d) previously used names and aliases;

(e) any specific, objective, physical characteristics not subject to change;

(f) place of birth;

(g) date of birth;

(h) gender;

(i) any nationalities held;

(j) whether the person concerned:

(i)

is armed;

(ii)

is violent;

(iii)

has absconded or escaped;

(iv)

poses a risk of suicide;

(v)

poses a threat to public health; or

(vi)

is involved in an activity referred to in Articles 3 to 14 of Directive (EU) 2017/541;

(k) the reason for the alert;

(l) the authority which created the alert;

(m) a reference to the decision giving rise to the alert;

(n) the action to be taken in the case of a hit;

(o) links to other alerts pursuant to Article 48;

(p) whether the person concerned is a family member of a citizen of the Union or other person who is a beneficiary of the right of free movement as referred to in Article 26;

(q) whether the decision for refusal of entry and stay is based on:

(i)

a previous conviction as referred to in point (a) of Article 24(2);

(ii)

a serious security threat as referred to in point (b) of Article 24(2);

(iii)

circumvention of Union or national law on entry and stay as referred to in point (c) of Article 24(2);

(iv)

an entry ban as referred to in point (b) of Article 24(1); or

(v)

a restrictive measure referred to in Article 25;

(r) the type of offence;

(s) the category of the person's identification documents;

(t) the country of issue of the person's identification documents;

(u) the number(s) of the person's identification documents;

(v) the date of issue of the person's identification documents;

(w) photographs and facial images;

(x) dactyloscopic data;

(y) a copy of the identification documents, in colour wherever possible.

3. The Commission shall adopt implementing acts to lay down and develop the technical rules necessary for entering, updating, deleting and searching the data referred to in paragraph 2 of this Article and the common standards referred to in paragraph 4 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 62(2).

4. Technical rules shall be similar for searches in CS-SIS, in national or shared copies and in technical copies made under Article 41(2). They shall be based on common standards.

Article 21 U.K. Proportionality

1. Before entering an alert and when extending the period of validity of an alert, Member States shall determine whether the case is adequate, relevant and important enough to warrant an alert in SIS.

2. Where the decision to refuse entry and stay referred to in point (a) of Article 24(1) is related to a terrorist offence, the case shall be considered adequate, relevant and important enough to warrant an alert in SIS. For public or national security reasons, Member States may exceptionally refrain from entering an alert when it is likely to obstruct official or legal inquiries, investigations or procedures.

Article 22 U.K. Requirement for an alert to be entered

1. The minimum set of data necessary in order to enter an alert into SIS shall be the data referred to in points (a), (g), (k), (m), (n) and (q) of Article 20(2). The other data referred to in that paragraph shall also be entered into SIS, if available.

2. The data referred to in point (e) of Article 20(2) of this Regulation shall only be entered when this is strictly necessary for the identification of the third-country national concerned. When such data are entered, Member States shall ensure that Article 9 of Regulation (EU) 2016/679 is complied with.

Article 23 U.K. Compatibility of alerts

1. Before entering an alert, the Member State shall check whether the person concerned is already the subject of an alert in SIS. For that purpose, a check with dactyloscopic data shall also be carried out if such data are available.

2. Only one alert per person per Member State shall be entered into SIS. Where necessary, new alerts may be entered on the same person by other Member States, in accordance with paragraph 3.

3. Where a person is already the subject of an alert in SIS, a Member State wishing to enter a new alert shall check that there is no incompatibility between the alerts. If there is no incompatibility, the Member State may enter the new alert. If the alerts are incompatible, the SIRENE Bureaux of the Member States concerned shall consult each other by exchanging supplementary information in order to reach an agreement. Rules on the compatibility of alerts shall be laid down in the SIRENE Manual. Departures from the compatibility rules may be made after consultation between the Member States if essential national interests are at stake.

4. In the case of hits on multiple alerts on the same person, the executing Member State shall observe the priority rules for alerts laid down in the SIRENE Manual.

If a person is subject to multiple alerts entered by different Member States, alerts for arrest entered in accordance with Article 26 of Regulation (EU) 2018/1862 shall be executed as a priority, subject to Article 25 of that Regulation.

Article 24 U.K. Conditions for entering alerts for refusal of entry and stay

1. Member States shall enter an alert for refusal of entry and stay when one of the following conditions is met:

(a) the Member State has concluded, based on an individual assessment which includes an assessment of the personal circumstances of the third-country national concerned and the consequences of refusing him or her entry and stay, that the presence of that third-country national on its territory poses a threat to public policy, to public security or to national security, and the Member State has consequently adopted a judicial or administrative decision in accordance with its national law to refuse entry and stay and issued a national alert for refusal of entry and stay; or

(b) the Member State has issued an entry ban in accordance with procedures respecting Directive 2008/115/EC in respect of a third-country national.

2. The situations covered by point (a) of paragraph 1 shall arise where:

(a) a third-country national has been convicted in a Member State of an offence carrying a penalty involving the deprivation of liberty of at least one year;

(b) there are serious grounds for believing that a third-country national has committed a serious criminal offence, including a terrorist offence, or there are clear indications of his or her intention to commit such an offence in the territory of a Member State; or

(c) a third-country national has circumvented or attempted to circumvent Union or national law on entry into and stay on the territory of the Member States.

3. The issuing Member State shall ensure that the alert takes effect in SIS as soon as the third-country national concerned has left the territory of the Member States or as soon as possible where the issuing Member State has obtained clear indications that the third-country national has left the territory of the Member States, in order to prevent the re-entry of that third-country national.

4. Persons in respect of whom a decision for refusal of entry and stay is taken as referred in paragraph 1 shall have the right to appeal. Such appeals shall be conducted in accordance with Union and national law, which shall provide for an effective remedy to be requested before a court.

Article 25 U.K. Conditions for entering alerts on third-country nationals subject to restrictive measures

1. Alerts on third-country nationals who are the subject of a restrictive measure intended to prevent entry into or transit through the territory of Member States taken in accordance with legal acts adopted by the Council, including measures implementing a travel ban issued by the Security Council of the United Nations, shall, insofar as data-quality requirements are satisfied, be entered into SIS for the purpose of refusing entry and stay.

2. The alerts shall be entered, kept up-to-date and deleted by the competent authority of the Member State which holds the Presidency of the Council of the European Union at the time of the adoption of the measure. If that Member State does not have access to SIS or to alerts entered in accordance with this Regulation, the responsibility shall be taken up by the Member State which holds the subsequent Presidency and which has access to SIS, including to alerts entered in accordance with this Regulation.

Member States shall put in place the necessary procedures for entering, updating and deleting such alerts.

Article 26 U.K. Conditions for entering alerts on third-country nationals who are beneficiaries of the right of free movement within the Union

1. An alert on a third-country national who is a beneficiary of the right of free movement within the Union in accordance with Directive 2004/38/EC or with an agreement between the Union or the Union and its Members States on the one hand, and a third country on the other hand, shall be in conformity with the rules adopted in implementation of that Directive or agreement.

2. Where there is a hit on an alert entered in accordance with Article 24 on a third-country national who is a beneficiary of the right of free movement within the Union, the executing Member State shall immediately consult the issuing Member State, through the exchange of supplementary information, in order to decide without delay on the action to be taken.

Article 27 U.K. Prior consultation before granting or extending a residence permit or long-stay visa

Where a Member State considers granting or extending a residence permit or long-stay visa to a third-country national who is the subject of an alert for refusal of entry and stay entered by another Member State, the Member States involved shall consult each other through the exchange of supplementary information, in accordance with the following rules:

(a)

the granting Member State shall consult the issuing Member State prior to granting or extending the residence permit or long-stay visa;

(b)

the issuing Member State shall reply to the consultation request within 10 calendar days;

(c)

the absence of a reply by the deadline referred to in point (b) shall mean that the issuing Member State does not object to the granting or extending of the residence permit or long-stay visa;

(d)

when making the relevant decision, the granting Member State shall take into account the reasons for the decision of the issuing Member State and shall consider, in accordance with national law, any threat to public policy or to public security which the presence of the third-country national in question on the territory of the Member States may pose;

(e)

the granting Member State shall notify the issuing Member State of its decision; and

(f)

where the granting Member State notifies the issuing Member State that it intends to grant or extend the residence permit or long-stay visa or that it has decided to do so, the issuing Member State shall delete the alert for refusal of entry and stay.

The final decision on whether to grant a residence permit or long-stay visa to a third-country national rests with the granting Member State.

Article 28 U.K. Prior consultation before entering an alert for refusal of entry and stay

Where a Member State has taken a decision referred to in Article 24(1) and considers entering an alert for refusal of entry and stay on a third-country national who is the holder of a valid residence permit or long-stay visa granted by another Member State, the Member States involved shall consult each other through the exchange of supplementary information, in accordance with the following rules:

(a)

the Member State that has taken the decision referred to in Article 24(1) shall inform the granting Member State of the decision;

(b)

the information exchanged under point (a) of this Article shall include sufficient detail on the reasons for the decision referred to in Article 24(1);

(c)

on the basis of the information provided by the Member State that has taken the decision referred to in Article 24(1), the granting Member State shall consider whether there are reasons for withdrawing the residence permit or long-stay visa;

(d)

when making the relevant decision, the granting Member State shall take into account the reasons for the decision of the Member State that has taken the decision referred to in Article 24(1) and shall consider, in accordance with national law, any threat to public policy or to public security which the presence of the third-country national in question on the territory of the Member States may pose;

(e)

within 14 calendar days of receipt of the request for consultation the granting Member State shall notify the Member State that has taken the decision referred to in Article 24(1) of its decision or, where it has been impossible for the granting Member State to take a decision within that period, shall make a reasoned request to extend exceptionally the time period for its response for a maximum of a further 12 calendar days;

(f)

where the granting Member State notifies the Member State that has taken the decision referred to in Article 24(1) that it is maintaining the residence permit or long-stay visa, the Member State that has taken the decision shall not enter the alert for refusal of entry and stay.

Article 29 U.K. A posteriori consultation after entering an alert for refusal of entry and stay

Where it emerges that a Member State has entered an alert for refusal of entry and stay on a third-country national who is the holder of a valid residence permit or long-stay visa granted by another Member State, the Member States involved shall consult each other through the exchange of supplementary information, in accordance with the following rules:

(a)

the issuing Member State shall inform the granting Member State of the alert for refusal of entry and stay;

(b)

the information exchanged under point (a) shall include sufficient detail on the reasons for the alert for refusal of entry and stay;

(c)

on the basis of the information provided by the issuing Member State, the granting Member State shall consider whether there are reasons for withdrawing the residence permit or long-stay visa;

(d)

when making its decision, the granting Member State shall take into account the reasons for the decision of the issuing Member State and shall consider, in accordance with national law, any threat to public policy or to public security which the presence of the third-country national in question on the territory of the Member States may pose;

(e)

within 14 calendar days of receipt of the request for consultation the granting Member State shall notify the issuing Member State of its decision or, where it has been impossible for the granting Member State to take a decision within that period, shall make a reasoned request to extend exceptionally the time period for its response for a maximum of a further 12 calendar days;

(f)

where the granting Member State notifies the issuing Member State that it is maintaining the residence permit or long-stay visa, the issuing Member State shall immediately delete the alert for refusal of entry and stay.

Article 30 U.K. Consultation in the case of a hit concerning a third-country national holding a valid residence permit or long-stay visa

Where a Member State encounters a hit on an alert for refusal of entry and stay entered by a Member State on a third-country national who is the holder of a valid residence permit or long-stay visa granted by another Member State, the Member States involved shall consult each other through the exchange of supplementary information, in accordance with the following rules:

(a)

the executing Member State shall inform the issuing Member State of the situation;

(b)

the issuing Member State shall initiate the procedure laid down in Article 29;

(c)

the issuing Member State shall notify the executing Member State of the outcome following the consultation.

The decision on the entry of the third-country national shall be taken by the executing Member State in accordance with Regulation (EU) 2016/399.

Article 31 U.K. Statistics on exchange of information

Member States shall provide statistics to eu-LISA on an annual basis on the exchanges of information carried out in accordance with Articles 27 to 30 and on the instances in which the deadlines provided for in those Articles were not met.