Help us make the FRA website better for you!
Take part in a one-to-one session and help us improve the FRA website. It will take about 30 minutes of your time.
Setting the scene
EES information and data support various immigration procedures. Staying alert about the possible inaccuracy of biometric matching results and being aware of potential justifications for overstay, reduces the risk of wrong decisions or actions triggered by incomplete or inaccurate EES data.
Selected findings from the field research
Qualitative research:
- The field research at BCPs pointed to limitations as regards capacity and flexibility to carry out second line checks at land and sea borders, as these often operate with limited staff and have to manage both pedestrians and vehicle traffic.
- A human rights expert in France, noted that expeditious procedures may compromise the right to an effective remedy, particularly when people don’t speak the language of the host country.
Border guards survey:
- About one in four officers (27%) encountered mistakes in SIS or other databases more than 6 times in the past year, one in five officers encountered such mistakes at least 2-5 times. (n=177)
- 45% of border guards indicated a need for training or guidance on procedures concerning asylum applicants and EES registration. (n=173)
Legal references
The EES calculates the duration of the authorised stay of third-country nationals in the Schengen area and generates alerts when the authorised stay has expired (EES Regulation, Article 1). There is an automated calculator (Article 11) which indicates the maximum duration of a person’s authorised stay. When they reach the maximum duration for short stay, third-country nationals will not be allowed entry into the Schengen area, unless they hold a permit for longer-term stay. Article 22 of the GDPR prohibits decisions solely based on automated processing.
According to Article 12(3) read together with Article 9(2) of the EES Regulation, the EES generates a list of individuals who have exceeded their authorised duration of stay in the Schengen area, referred to as overstayers. This list is shared with border, visa and immigration authorities, allowing them to take appropriate follow up measures. For third-country nationals apprehended within the Schengen area, this would normally mean starting a return procedure.
To prevent the start of immigration law enforcement procedures against persons staying lawfully in the Schengen area, for example, when stay is prolonged due to medical reasons or an application for asylum, Article 39 of the EES Regulation contains a duty to keep EES data accurate and up to date. This also means that EES records of third-country nationals who are not anymore short-term visitors – as they acquired EU citizenship, obtained a residence permit or a residence card for family members of EU citizens under Directive 2004/38/EC – must be erased. Such categories of persons fall outside the scope of the EES, as defined in Article 2 of the EES Regulation.
The EES Regulation does not exclude asylum applicants from its scope. Under Article 10 of the Asylum Procedure Regulation (EU) 2024/1348, asylum applicants are allowed to remain during the asylum procedure. If they feature in the list of overstayers, this would put them at risk of refoulement, which would be contrary to the Charter.
Article 35(5) of the EES Regulation has a safeguard to deal with third-country nationals who overstay for reasons beyond their control, e.g. due to hospitalisation or a cancelled return flight. If third-country nationals can show that their stay beyond the authorised period was due to unforeseeable and serious circumstances, they must be removed from the list of overstayers and their EES data must be corrected.
Under Article 41 of the EES Regulation, EES data may be transferred to third countries if this is necessary to prove the person’s identity to implement their return. Under Article 41(4) such transfer must not prejudice the rights of applicants for and beneficiaries of international protection, in particular as regards the prohibition of refoulement.
Guidance points
The following actions may help national authorities to reduce the risk that inaccurate EES data trigger inappropriate or unlawful follow up:
- Establishing effective systems to correct or erase EES data swiftly when third-country nationals fall outside the scope of the EES, e.g. if they get a residence permit or are granted international protection.
- Establishing a system to monitor if EES data of third-country nationals who fall outside the scope of the EES is swiftly rectified, completed or erased.
- Providing regular guidance and training to relevant authorities on steps to take when a person whose data are in the EES applies for asylum, to avoid that they feature on the list of overstayers, as this may expose them to a risk of refoulement.
- Providing regular guidance and training to immigration law enforcement officers to ensure that any transfer of EES data to third countries for the purpose of return occurs only once a final return decision has been issued.
- Offering training and guidance to front-line staff to treat any person – whose duration of authorised stay expired – in a professional and dignified manner.
- Offering training and guidance to front-line staff on how to implement procedures for third-country nationals to rebut the presumption of overstay, including how to give third-country nationals the opportunity to provide credible evidence.
- Providing guidance to BCPs hosting third-country guest officers to set up workstations in a manner that ensures the confidentiality of the EES and prevents them from accessing EES data, particularly on asylum applicants.
Further reading:
- EES Practical Handbook
- FRA-ECtHR Handbook on European law relating to asylum, borders and immigration – Edition 2020 (update forthcoming in 2026)
- FRA, Apprehension of migrants in an irregular situation – fundamental rights considerations (2012).