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The main objective of the Schengen cooperation is the creation of an area without internal border controls.1 It requires efficient controls at external borders2 as well as the application of relevant flanking measures in areas such as police and judicial cooperation and visa policy. The provisions on external border control apply nevertheless at internal borders in two cases. The first one relates to the situation where the process for the lifting of internal border controls at these internal borders has not yet been finalised3. Border controls at these borders must be carried out in line with the provisions of Title II of the Schengen Borders Code4. The second case refers to the situation where controls at internal borders are temporarily reintroduced by a Schengen State fully applying the Schengen acquis5. The relevant provisions of Title II then apply mutatis mutandis as internal borders are not becoming external borders.
‘Persons enjoying the right of free movement under Union law are nationals of EU Member States, EEA countries and Switzerland, as well as members of their family, regardless of their nationality accompanying or joining them’.
‘Members of the family of EU, EEA or CH citizens enjoying the right of free movement under Union law’ are, irrespective of their nationality’:
the spouse (independently of the sex of the spouse) and, if this is contracted on the basis of the legislation of an EU or Schengen State and recognised by the legislation of the host EU or Schengen State as equivalent to marriage, the partner with whom the EU/EEA/CH citizen has contracted a registered partnership;
the direct descendants under the age of 21 or dependants, including those of the spouse or registered partner;
the dependent direct relatives in the ascending line, including those of the spouse or registered partner.
CHECKS AT BORDER CROSSING POINTS
The main purpose of border checks at border crossing points is to verify that all persons crossing the border fulfil the entry conditions in the territory of the Schengen States. In case of third-country nationals the entry conditions are checked.
With regard to EU citizens and members of their family the controls aim in particular at verifying the eligibility of the persons concerned to the right to free movement under Union law resulting from Directive 2004/38. Specific rules apply also for certain categories of persons.
All persons, both EU/EEA/CH citizens and third-country nationals, must undergo systematic checks against relevant databases upon crossing the external borders15. Those databases are:
SIS (part on documents and part relevant for assessing if the persons in question may represent a threat to the public policy, internal security, public health or international relations of the Schengen States)
SLTD;
national databases containing information on stolen, misappropriated, lost and invalidated travel documents;
The border guards may also consult other national and Interpol databases.
Advice to border guards when conducting border checks:
Before you put the border’s stamp when required make sure that the person did not overstay the allowed period (i.e. 90 days within any 180 days) during his/her last stay within the area without internal border controls or on the territory of Bulgaria, Croatia, Cyprus or Romania taken separately; For third-country nationals who are family members of EU, EEA and CH citizens, please note that specific provisions apply to them:
In the case of third-country nationals who are family members of EU, EEA and CH citizens, they have the right of residence in a Member State for a period of up to three months if they are in possession of a valid passport and are accompanying or joining the EU, EEA or CH citizen, without any limitation to 90 days in a 180-day period.
To be noted that, third-country nationals who are family members of EU, EEA and CH citizens are entitled to accompany or join the EU, EEA or CH citizen for consecutive periods of up to three months per Schengen States without any conditions or formalities (except the need to have a visa for third-country nationals from a country subject to a visa requirement).
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When the family member travels on his/her own, the normal regime concerning the length of the short stay will (re)start to apply, as the conditions for benefiting from the facilitations concerning the free movement of the EU, EEA and CH citizens and their families are not met anymore.
The previous stays performed in the area without internal border controls accompanying or joining the EU, EEA or CH citizen should not be taken into account for the sake of the calculation of the compliance with the 90/180-day rule which is applicable to the short stay only.
*Examples
An Indian national married to a French citizen may accompany his French spouse to Germany for three months, Spain for two months and Italy for three months, thus staying in the area without internal border controls for a total consecutive period of eight months.
A Japanese citizen is married with an Estonian citizen and has never come to the EU before. The Japanese citizen accompanies his Estonian spouse to Italy for one month. Just after that month, the Estonian spouse leaves Italy and returns to Japan to work. The Japanese citizen can remain alone for another 90 days (the limit of 90 days in any 180-day applies).
A Chinese citizen married to a Swedish citizen spends alone, for business purposes, 15 days in Austria. The Swedish citizen then joins him and they spend one month in Portugal. Just after that month, the Swedish spouse leaves the EU. The Chinese citizen can remain alone for the remaining 75 days in the 180-day period (the limit of 90 days in any 180-day
period applies, but the stay performed together with the EU citizen should not be counted (in this example, the one month period) when assessing the respect of the limit of 90 days in any 180-day period.).
In order to avoid subjecting persons enjoying the right of free movement under Union law to those systematic checks twice at the land border crossing points with Romania, Bulgaria and Croatia, border authorities may decide based on a risk assessment that checks against relevant databases will be carried out upon exit on a non-systematic basis only. For the time being this arrangement may apply to the following land borders:
Bulgaria-Greece
Romania-Hungary
Bulgaria-Romania
Croatia-Slovenia
Croatia-Hungary
Persons enjoying the right of free movement under Union law are authorised to cross the border of a Schengen State on the basis of the following documents, as a general rule:
– EU, EEA, CH citizens: identity card or passport;
– Members of the family of EU,EEA and CH citizens who are nationals of a third- country: passport. They may also be required to have a visa, if they are nationals of a third-country subject to the visa obligation, unless they are in possession of:
*Examples
A Slovak citizen resides with her Chinese spouse in Germany. They travel to France. As the Chinese spouse has a German residence card issued under Article 10 of the Directive, there is no need for an entry visa, both under the Directive or the Schengen Borders Code.
A German citizen resides with his Chinese spouse in Germany. They travel to Spain. As the Chinese spouse holds a German residence permit issued under national law by a Schengen Member State, there is no need for an entry visa under the Schengen Borders Code.
A Slovak citizen resides with her Chinese spouse in Romania. They travel to France. As the Chinese spouse has a Romanian residence card issued under Article 10 of the Directive, he is exempted from the visa requirement under the Directive.
A Slovak citizen resides with his Chinese spouse in Ireland. The Chinese spouse holding a residence card, issued by Ireland under Article 20 of the Directive, travels alone to France. As she travels alone, she needs to apply for a visa to enter France.
Family member subject to the visa obligation might also present two passports, i.e. a valid passport (without visa) and an invalidated passport containing a valid visa.
For further information on the specific rules relating to family members of EU, EEA and CH citizens.
Third-country nationals holding a valid residence permit should, as a general rule, not be asked to prove the purpose of the intended stay nor the possession of means of subsistence. The other checks – and in particular the examination of travel and residence documents, the searches in the SIS and in national databases – must, however, be carried out.
During border checks, in the case of accompanied minors, the border guard must check that the persons accompanying minors have parental custody over them, especially where minors are accompanied by only one adult. If so, the border guard will have to make all necessary investigations in order to prevent the abduction or in any case unlawful removal of the minor.
Cross-border workers
Cross-border workers and other categories of regular cross-border commuters who are well known to the border guards owing to their frequent crossing of the border at the same border crossing point and who have not been revealed by an initial check to be the subject of an alert in the SIS or in a national data file must be subject only to random checks to ensure that they hold a valid document authorising them to cross the border and fulfil the necessary entry conditions. The random checks have to be carried out in accordance with the procedures applicable, respectively, to third-country nationals in general and to persons enjoying the right of free movement under Union law.
Thorough checks must be carried out on those persons from time to time, without warning and at irregular intervals.
Offshore workers
Offshore workers, who regularly return to the Schengen States without having stayed on the territory of a third country shall not be systematically checked. Nevertheless, an assessment of the risks of illegal immigration shall be taken into account in order to determine the frequency of the checks to be carried out.
Intra-corporate transferees
The intra-EU mobility scheme established by Directive 2014/66/EU lays down autonomous rules which allow holders of an intra-corporate transferee (ICT)- including holders of an ICT permit issued by a Schengen State not yet fully applying the Schengen acquis to exercise mobility and to enter, stay and work in one or several second EU Member States bound by the provisions of that Directive (i.e. all EU Member States except Denmark, Ireland and the United Kingdom).
* Legal basis:
– Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) (Article 27, 31 and 32).
STAMPING OF TRAVEL DOCUMENTS
No entry or exit stamp must be affixed in the following cases:
to the travel documents of nationals of the EU Member States, Norway, Iceland, Liechtenstein and Switzerland;
to the travel documents of Heads of State and dignitaries whose arrival has been officially announced in advance through diplomatic channels;
to pilots’ licences or the certificates of aircraft crew members;
to the travel documents of seamen who are present within the territory of a Schengen State only when their ship calls in and in the area of the port of call;
to the travel documents of crew and passengers of cruise ships who are not subject to Checks on cruise ships.
to documents enabling nationals of Andorra, Monaco and San Marino to cross the border;
to documents of border residents enjoying a local border traffic regime.
to the travel documents of crews of passengers and goods trains on international connections;
to the travel documents of nationals of third countries who present a residence card provided for in Directive 2004/38/EC.
The travel document of family members of EU, EEA and CH citizens who are third- country nationals must also be stamped, unless they present a residence card issued in accordance with Directive 2004/38/ EC as submitted in line with Article 39 of the Schengen Border Code or otherwise clearly indicating a family member of an EU citizen or a family member of an EEA or CH citizen.
* Examples:
A Ukrainian national, spouse of a German citizen, holder of a Dutch residence card (indicating her quality of a family member of an EU citizen) and who is accompanied by the German citizen or who subsequently joins the spouse, thus exercising the right to freedom of movement: the travel document of this person must not be stamped.
A Moldovan spouse of an Italian national, who is in possession of an Irish residence card (indicating the status of family member of a EU citizen) and who is accompanied by the EU citizen.: the travel document of this person must not be stamped.
An Indian national, spouse of a French citizen, holder of a Schengen visa but not (yet) of a residence card, joining the French citizen in Germany: in this case, the travel document of this person must be stamped.
Persons enjoying the right of free movement under Union law may only be refused entry on grounds of public policy or public security as referred to under Directive 2004/38/EC, i.e. when their personal conduct represents a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society.
If a person enjoying the right of free movement under Union law does not have the necessary travel documents or, if required, the necessary visas, the Schengen State concerned must, before turning him/her back, give such person every reasonable opportunity to obtain the necessary documents or have them brought to him/her within a reasonable period of time or corroborate or prove by other means that he/she is covered by the right of free movement under Union law.
If a person enjoying the right of free movement under Union law is refused entry, the border guard must always provide the person with a written decision. The decision must be drafted in such a way that the person concerned is able to comprehend its content and the implications. The decision must also include precise and full indication of the public.
Article 5 (4) of Directive 2004/38/EC: 4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.
