28 March 2012
Three-quarters of a million "illegal aliens" banned from Schengen area
- 778,886 people registered on Schengen Information System as aliens to be refused entry;
- massive discrepancy in number of records created by Schengen member states;
- Italy and Germany top criminalisation league, together creating 77 per cent of the total number of records;
- are new rules narrowing the scope of Article 96 needed?
Documents obtained by Statewatch show for the first time the country-by-country breakdown of Article 96 "alerts" (records) in the Schengen Information System. Article 96 is the category under which Schengen states register "illegal aliens" - people to be denied access to Schengen territory on immigration, public order or national security grounds. The figures show that there is a massive discrepancy in the practise of Schengen states when it comes to registering "aliens" on the SIS:
alerts in the SIS, 1 February 2003:
The criteria for registering persons on the SIS under article 96 are set out in the Schengen Convention. The member states are encouraged to register "illegal aliens" that pose
a threat to public order or national security and safety
or who have
been the subject of a deportation, removal or expulsion measure... accompanied by a prohibition on entry or, where appropriate, residence
Though it is for the member states to decide when an "alien" poses a threat to "threat to public order or national security", the Schengen Convention encourages them to register those convicted of a criminal offence carrying a custodial sentence of one year a more (a low standard which may encompass "minor" crimes) together with "aliens" where there are "serious grounds" to supect them of committing "serious offences" or "genuine evidence of an intention to commit such offences".
Disparity in member state practice
The Schengen states are thus given broad discretion over who can be registered in the SIS and have clearly taken very different approaches to Article 96. Some states have an "automatic procedure", whereby registration on the SIS is mandatory following specific decisions, while others make a "case-by-case assessment" in connection with certain decisions. It has long been understood that Germany has been registering all failed applicants for asylum; it is now clear that Italy too is registering unwelcome immigrants en masse. In doing so they are effectively banning all those they register from the entire Schengen territory (all EU states except the UK and Ireland, plus Norway and Iceland), since an Article 96 alert issued by one member state must be enforced in all the others (Italy and Germany together account for 77 per cent of the total number of Article 96 alerts on the SIS). But many of the people registered on the SIS by Italy and Germany for falling foul of immigration and asylum procedures will not have committed any criminal offence. Nevertheless they are now effectively banned from western Europe ("SIS II" will incorporate the new EU member states in 2007). It is also clear that a majority of Schengen states have a stricter interpretation of Article 96 and are not registering immigrants to nearly the same extent. Is it then proportionate or desireable for all the member states to have to enforce a policy of exclusion pursued by the more zealous among them?
Possible misuse of Article 96 alerts
The statistics have been collated by the Schengen Joint Supervisory authority in the course of a forthcoming review of Article 96. The JSA investigation was prompted by widespread concern that Schengen states were registering "anti-globalisation demonstrators" on the SIS. According to the JSA
It is also known that seasonal labourers and truck drivers (such as those who fail to pay traffic fines, for example) from non-Schengen states are sometimes alerted in the SIS.
However, the powers of the JSA are limited to requesting an explanation of the national laws and procedures applicable to the creation of Article 96 alerts from the member states. Unfortunately, this procedural review does not shed much light on the practise of the member states as far as the registration of "anti-globalisation demonstrators" and seasonal labourers is concerned. The JSA report is expected before summer 2005.
Legislation on the second-generation Schengen Information System, SIS II, is also awaited. However, far from clarifying or restricting the scope of Article 96, it is expected that more data will be included in SIS II, for more purposes.
Source: Overview of answers to questionnaire on Article 96, Schengen Joint Supervisory Authority, 2005.
Next week Statewatch will publish a report on the development of SIS II and the Visa Information System.
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