Travel within the Schengen Area by third-country nationals who are exempt from requiring a Schengen visa

Travel within the Schengen Area - how the implementation of the Entry/Exit System (EES) and the European Travel Information and Authorisation System (ETIAS) is likely to affect third-country nationals who are exempt from requiring a Schengen visa

 

EU Member States’ border management authorities have little information about travellers exempt from visa requirements entering the EU.

Travel documents of third-country nationals currently must be stamped on entry and exit. This obligation is applicable to all member states of the Schengen Area.

The entry and exit stamps are then examined by border guards to verify, by comparing the dates of entry and exit, that the person has not exceeded the maximum duration of authorised stay within the Schengen Zone. This duration of authorised stay is generally 90 days in any 180-day period.
 
Several systems have already been implemented in recent years to facilitate integrated border management. However, up until now, the focus of these changes has been on facilitating travel in practice while safeguarding security (eg, through eGates or matching biometric identifiers of travellers with their travel documents).
 
Monitoring of travel within the Schengen Area will significantly improve with the implementation of new information technology systems.
 
ETIAS
 
The ETIAS Regulation (EU Regulation 2018/1240 establishing a European Travel Information and Authorisation System (ETIAS)) was passed by the European Parliament on 5 July 2018. The adoption was formally confirmed by the Council of the EU on 5 September and officially signed by the two co-legislators on 12 September. It entered into force on 9 October 2018.
 
Although the ETIAS legal framework is still in the course of completion with the European Commission’s Implementing and Delegated Acts, it is due to become operational by the end of 2023.
 
ETIAS is a system that will collect and screen personal information of third-country nationals who are exempt from requiring a Schengen visa.
 
To obtain valid travel authorisation, Schengen visa exempt third-country nationals or a third party will need to pay a travel authorisation fee and supply data in advance of any intended travel, using an online application form or electronic application, including (but not limited to):
 
·       the individual's personal information;
·       travel document information; and
·       the member state of first intended stay.
 
This information will be verified and checked for hits against security watchlists and other systems to ensure that entry conditions are met prior to issuing the travel authorisation.
 
The travel authorisation will be issued for a period of three years or until the end of validity of the travel document registered during the application (whichever comes first) and shall be valid for entering the territory of all member states.
 
After the ETIAS becomes operational, the current visa exemptions will remain in force but travel for visa exempt nationals will only be possible if the individual holds a valid ETIAS travel authorisation.
 
An appeal process will be made available for those who wish to challenge an ETIAS travel authorisation refusal. Alternatively, they may choose to make a further application, including submitting further information or evidence on their changed circumstances or other reasons why they meet the requirements for the authorisation to be granted.

 EES
 
In tandem with ETIAS, it is also envisaged that Schengen Countries will also be implementing an automatic registration system that will collect information of third-country nationals admitted for a short stay, including those who require a visa and those who are visa exempt, each time they cross an external border of the Schengen Area. This system is known as the Entry/Exit System (EES).
 
The EES is currently expected to launch on a phased basis from the end of May 2023. Recorded information will include:
 

• the individual's personal information, travel document and biometric data;
• the time and place of entry and exit; and
• previous refusals of entry including date, time, place, refusing authority and reasons for refusal.

 
Using up-to-date technology, the EES will:
 

• create a record of travel history;
• calculate the duration of authorised stay;
• flag "overstayers" (ie, travellers who have exceeded the maximum duration of their authorised stay);
• generate alerts when the authorised stay has expired; and
• record refusals of entry.

 
The EES will, in time, replace the current system of manual passport stamping and allow for efficient and effective border management and improved detection of document and identity fraud. It is also expected to deliver better monitoring of unauthorised short stays of third-country nationals. The aim of the system is to make the external borders stronger, smarter and more secure.

How will these systems impact business travel for Visa Exempt travel within the Schengen Area
 
The introduction of these systems will not alter the underlying rules regarding the duration of allowed stay within the Schengen Area for third-country nationals.
 
The automatic registration of data will, however, increase transparency and, if implemented consistently, close off any possibility of entering the Schengen Area as an overstayer or remaining within the area as an overstayer without penalty.
 
For visa-exempt visitors and the businesses they work for, the importance of planning business travel, screening travel history and verifying the need for additional requirements in advance will increase after the implementation of the EES. This is because the automated calculator that is part of the EES will inform the authorities:
 

• on entry, of the maximum duration of authorised stay;
• during checks or verification within the Schengen Area, of the remaining authorised stay or duration of overstay; and
• on exit, of any overstay.

 
As part of the roll-out of the EES, a third-country national will be able to consult an online tool available on the EES website to verify the maximum duration of authorised stay. This will most likely render the current Schengen calculator obsolete and will hopefully improve user experience for travelling third-country nationals.
 
N.B. The information provided herein does not constitute legal advice. For further information, please feel free to call +356 99491230 or send an email to avukatdemaria@gmail.com.