The EU Court of Justice rules on the Schengen Conundrum

The EU Court of Justice rules on the Schengen Conundrum: a non-EU citizen with expulsion order in one Member State and a valid residence permit in another Member State.

by Professors Elspeth Guild, Queen Mary University of London and Kingsley Napley, and Steve Peers, University of Essex


What happens if a non-EU citizen has a residence permit from one Member State, but another Member State wants to expel him? The Court of Justice addressed this issue for the first time in its ruling last week in the case of E.


This issue is complicated because there are two different relevant sources of EU law, which have not been linked very clearly. First of all, Article 25 of the Schengen Convention, as amended in 2010, states that if a Member State considers issuing a residence permit or long-stay visa, it shall search the Schengen Information System (SIS), which (among other things) contains a list of non-EU citizens banned from entry into the EU. Each listing is called an ‘alert’. If there is an alert on the person concerned, the Member State that wants to issue the residence permit or long-stay visa shall consult the Member State which issued the alert and ‘take account of its interests’, granting a residence permit or or long-stay visa only for ‘substantive reasons…notably on humanitarian grounds for by reason of international commitments’. If a residence permit or long-stay visa is issued, the alert in the SIS must be withdrawn, but the Member State which issued it can keep the person concerned on a national list of alerts. There’s also an obligation to check national records of long-stay visas or residence permits before issuing alerts…

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