Can you enter the Schengen area if you have past criminal convictions?

Jun 07, 2022

Which criminal offences will need to be reported by travellers under the new ETIAS system?

Entering Schengen Area

According to the Schengen Rules (I) entrance to non EU nationals can be denied to those who:

are considered to be a threat to public policy, national security or the international relations of any of the Contracting Parties and in particular where no alert has been issued in Member States’ national data bases and in the Schengen Information System (SIS) (II) for the purposes of refusing entry on the same grounds.”

Each Schengen country has also its own rules, conditions and requirements regarding the conditions for allowing entry to non EU nationals.

January 1, 2023: what will change?

If everyhting goes as planned, starting from 2023 (𝒕𝒉𝒆 𝒆𝒙𝒂𝒄𝒕 𝒅𝒂𝒕𝒆 𝒉𝒂𝒔 𝒏𝒐𝒕 𝒃𝒆𝒆𝒏 𝒂𝒏𝒏𝒐𝒖𝒏𝒄𝒆𝒅 𝒚𝒆𝒕), non-EU nationals who do not need a visa to travel to the Schengen area will have to apply for a travel authorisation through the 𝗘𝗧𝗜𝗔𝗦 𝗦𝘆𝘀𝘁𝗲𝗺 to their trip.

ETIAS stands for European Travel Information and Authorisation System (III).

The system aims tocarry out pre-travel screening for security and migration risks of visa-exempt visitors and it will be a mandatory pre-condition for entry to the Schengen States.

ETIAS: what it is and how it works?

Applicant will file an online application form and the system will:

(a) issue a travel authorisation within minutes; or

(b) in limited cases, where further checks on the traveller are needed, the issuing of the travel authorisation could take up to 30 days. (IV)

What information must be provided in the ETIAS application?

Examples of data requested:

· Personal data Travel document (passport or equivalent document)

· Member State of first-intended stay

· Background questions relating to previous criminal records, presence in conflict zones, orders to leave the territory of a Member State or third countries, return decisions issued.

· If the application is submitted by a person other than of the applicant, identity of the person or company that he or she represents.

What criminal offences an applicant must report?

The applicant shall report any criminal offence listed over the previous 10 years and in the case of terrorist offences, over the previous 20 years, and if so when and in which country.

serious criminal offence’ means an offence which corresponds or is equivalent to one of the offences referred to in, if it is punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years; (V)

List of offences

(1) participation in a criminal organisation (2) terrorism, (3) trafficking in human beings, (4) sexual exploitation of children and child pornography (5) illicit trafficking in narcotic drugs and psychotropic substances (6) illicit trafficking in weapons, munitions and explosives (7) corruption, (8) fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests, (9) laundering of the proceeds of crime (10) counterfeiting currency, including of the euro (11) computer-related crime (12) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties (13) facilitation of unauthorised entry and residence (14) murder, grievous bodily injury (15) illicit trade in human organs and tissue (16) kidnapping, illegal restraint and hostage-taking (17) racism and xenophobia (18) organised or armed robbery (19) illicit trafficking in cultural goods, including antiques and works of art (20) swindling (21) racketeering and extortion (22) counterfeiting and piracy of products (23) forgery of administrative documents and trafficking therein (25) forgery of means of payment (26) illicit trafficking in hormonal substances and other growth promoters (27 illicit trafficking in nuclear or radioactive materials (28) trafficking in stolen vehicles (29) rape (30) arson (31) crimes within the jurisdiction of the International Criminal Court (32) unlawful seizure of aircraft/ships (33) sabotage.

Which databases shall be cross-checked to verify the applicant’s status?

(1) the existing EU information systems

(2) the Schengen Information System (SIS)

(3) the Visa Information System (VIS)

(4) Europol data

(5) the Eurodac database (once the Eurodac recast is in place)

(6) the Entry/Exit System (EES)

(7) the Interpol Stolen and Lost Travel Document database (SLTD)

(8) the Interpol Travel Documents Associated with Notices database (TDAWN)

(9) a dedicated ETIAS watch list and specific risk indicators

What happens if a person has been refused travel authorisation from ETIAS?

If the travel authorisation is refused, the applicant retains 𝘁𝗵𝗲 𝗿𝗶𝗴𝗵𝘁 𝗼𝗳 𝗮𝗽𝗽𝗲𝗮𝗹. Appeals can be launched in the Member State that has taken the decision on the application and in accordance with the national law of that Member State.

The applicant will be informed which national authority is responsible for the processing and decision on his or her travel authorisation, as well as information regarding the procedure to be followed in the event of an appeal.

If the traveller considers their treatment to have been unfair, he/she is also given the right to seek redress or request access to the information through the national authority

References

(I) Art. 5.1(e) Schengen Acquis — https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:42000A0922(02)&from=EN

Art. 6.1(e) EU Regulation 2016/399 — Regulation (EU) 2016/ 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) (europa.eu)

Art. 21.3(d) and art. 32.1(a)(vi) — EU Regulation 810/2009 — Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (europa.eu)

(II) The SIS is an information system that supports external border control to help preserving internal security in the Schengen States in the absence of internal border checks. It enables authorities to enter and consult alerts on certain categories of wanted or missing persons and objects https://home-affairs.ec.europa.eu/policies/schengen-borders-and-visa/schengen-information-system_en

(III) Regulation (EU) 2018/ of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (europa.eu)

(IV) ETIAS factsheetETIAS-April2018.indd (europa.eu)

(V) Article 2(2) of Framework Decision 2002/584/JHA — https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32002F0584

(VI) For 𝗙𝗔𝗤𝘀 𝗮𝗯𝗼𝘂𝘁 𝗘𝗧𝗜𝗔𝗦 see European Travel Information and Authorisation System-ETIAS-memo_en.pdf (europa.eu)

(VI) see also ETIAS (europa.eu)

(VII) For Italy’s entry rules, see our article Enter Schengen with Criminal charges | Mazzeschi Legal Counsels

Disclaimer

The information provided on this article (i) does not, and is not intended to, constitute legal advice; (ii) are for general informational purposes only and may not constitute the most up-to-date legal or other information (iii) this website may contain links to other third-party websites. Such links are only for the convenience of the reader; (iv) readers should contact their attorney to obtain advice with respect to any particular legal matter.

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