France: Court annuls SIS visa refusals
01 September 1999
On 6 June, the French Council of State annulled two decisions to refuse visas to individuals on the basis of their being registered on the Schengen Information System (SIS). This was the first time that the Council had been asked to consider the legality of individual decisions concerning the registering of foreign nationals on the SIS.
The SIS was created to "maintain public order and security, including state security" (Article 93, Schengen Implementing Convention 1990) to compensate for the removal of internal borders under the 1986 Schengen Agreement. It is made up of national information and intelligence databases to which authorities in other signatory states have access. Individuals are registered if they are wanted for extradition purposes, wanted in court, if they are subject to "discreet surveillance" or if they are to be refused entry. This last category, Article 96, is the largest (relating to persons) and contains data relating to "aliens" to be refused entry to the "Schengen space" on grounds of "public order or national security" (para. 2) or "non-compliance with national regulations on the entry or residence of aliens" (para. 3).
The first case before the Council of State concerned the decision of the French consulate in Casablanca to refuse a short stay visa to a Moroccan national. The refusal made references to Articles 5 and 15 of the 1990 Schengen Implementing Convention but failed to mention which state was responsible for entering the information in the first place. The Council held that this omission denied the affected person the chance to pursue any recourse toward the state in question and annulled the decision.
In the second case a Romanian national was refused a long stay visa by the consulate in Bucharest because of information registered on the SIS under Article 96 by the German authorities based on their rejection of her claim for asylum. The Council of State considered their competence extended to judging whether the registration on the SIS conformed to the grounds set out in the Convention, and ruled that the reason given by the German authorities (a rejected claim for asylum) did not comply with those laid down in Article 96. In declaring the registration unjustified, they indicated that people who are unfairly registered on the SIS can demand compensation from either the state who made the entry or the state who acted on the information therein - the French authorities were ordered to pay FF 3,000 compensation for refusing the visa.
In 1997, there were nearly 15,000 "hits" identifying "aliens" registered under Article 96 among the seven Schengen states who had access to the SIS (see Statewatch vol 8, no 3 & 4).
Migrations Europe, August 1999.