a. Conduct of border checks
Border guards shall, in the performance of their duties, fully respect human dignity
and shall not discriminate against persons on grounds of sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation. Any measures taken in the
performance of their duties shall be proportionate to the objectives pursued by such
measures.
b. Border checks on persons
Cross-border movement at external borders shall be subject to checks by border
guards. The checks may also cover the means of transport and objects in the
possession of the persons crossing the border. The law of the Member State
concerned shall apply to any searches which are carried out.
sAll persons shall undergo a minimum check in order to establish their identities on
the basis of the production or presentation of their travel documents. Such minimum
check shall be the rule for persons enjoying the Community right of free movement.
Third-country nationals, however, shall be subject to thorough checks on entry and
exit.
a- Checks on entry
s Thorough checks on entry shall comprise verification of the entry conditions for third
country nationals and, where applicable, of documents authorising residence and the
pursuit of a professional activity.
This shall include a detailed examination or verification of the existence of valid
documents and, where applicable, of the requisite visa or residence permit, of the
travel document, of the entry and exit stamps on the travel document, of the point
of departure and the destination, of the purpose of the intended stay, of the existence
of sufficient means of subsistence for the duration and purpose of the intended stay,
and of the fact whether the third country national, his means of transport and the
objects he is transporting are not posing any threat.
- Checks on exit
sThorough checks on exit consist of the verification of valid documents, including
travel document, and of the fact whether the third country national poses any threat.
In addition, thorough checks on exit may comprise of a verification of a valid visa or
residence permit and of the fact whether the maximum duration of the authorised
stay in the Member States’ territory has been exceeded or not. It may also consist of
a consultation of alerts on persons and objects (e.g. in the SIS).
c. Relaxation of border checks
Border checks at external borders may be relaxed as a result of exceptional and
unforeseen circumstances, i.e. unforeseeable events that lead to traffic of such
intensity that the waiting time at the border crossing point becomes excessive, and
all resources have been exhausted as regards staff, facilities and organisation.
In case of relaxed border checks, border checks on entry movements shall in principle
take priority over border checks on exit movements.
The decision to relax checks shall be taken by the border guard in command at the
border crossing point. Such relaxation of checks shall be temporary, adapted to the
circumstances justifying it and introduced gradually.
Even in case of relaxed border checks, the border guard shall stamp the travel
documents of third-country nationals both on entry and exit.
d. Separate lanes
Member States shall provide separate lanes, in particular at air border crossing points
in order to carry out checks on persons, and may provide separate lanes at their sea
and land border crossing points. Such lanes shall be differentiated by means of the
signs with specific indications.
e. Stamping of travel documents of third country nationals
The travel documents of third-country nationals shall be systematically stamped on
entry and exit. In particular an entry or exit stamp shall be affixed to:
(a) the documents, bearing a valid visa, enabling third-country nationals to
cross the border;
(b) the documents enabling third-country nationals to whom a visa is issued
at the border by a Member State to cross the border;
(c) the documents enabling third-country nationals not subject to a visa
requirement to cross the border.
However, no entry or exit stamp shall be affixed to a specific category of persons,
including to the travel documents of seamen who are present within the territory of
a Member State only when their ship puts in and in the area of the port of call, and
to the travel documents of crew and passengers of cruise ships who are not subject
to border checks.
Exceptionally, at the request of a third-country national, insertion of an entry or exit
stamp may be dispensed with if insertion might cause serious difficulties for that
person. In that case, entry or exit shall be recorded on a separate sheet indicating
the name and passport number. That sheet shall be given to the third-country
national.
The practical arrangements for stamping are set out in Annex IV to the Schengen
Border Code.
For practical reasons, it is suggested to shipping companies advising their captains
and crew members to stamp visa of newly enrolled crew members before departure
of the vessels from the port where they have been enrolled. The rationale being that
such multiple entry visa not being stamped at the port of departure could be
considered wrongly as having expired, or the holder of such visa could be considered
wrongly as having misused his/her visa and hence runs a serious risk of no longer
been granted a new multiple entry visa in future.
f. Presumption
If the travel document of a third-country national does not bear an entry stamp, the
competent national authorities may presume that the holder does not fulfil, or no
longer fulfils, the conditions of duration of stay applicable within the Member State
concerned.
This presumption may be rebutted where the third-country national provides, by any
means, credible evidence that he or she has respected the conditions relating to the
duration of a short stay.
In case the presumption cannot be rebutted, the third-country national may be
expelled by the competent authorities from the territory of the Member States
concerned.
g. Border surveillance
Border surveillance aims at preventing unauthorised border crossings, at countering
cross-border criminality and at taking measures against persons who have crossed
the border illegally.
The border guards shall use stationary or mobile units to carry out border surveillance
and such surveillance shall be carried out in such a way as to prevent and discourage
persons from circumventing the checks at border crossing points.
h. Refusal of entry
A third-country national who does not fulfil all the entry conditions shall be refused
entry to the territories of the Member States. Entry may only be refused by a
substantiated decision stating the precise reasons for the refusal and laid down in a
standard form, as defined in the Code. The decision shall be taken by an authority
empowered by national law and it shall take effect immediately.
Persons refused entry shall have the right to appeal. Appeals shall be conducted in
accordance with national law. However, lodging an appeal shall not have suspensive
effect on a decision to refuse entry.
Without prejudice to any compensation, the third-country national shall, where the
appeal concludes that the decision to refuse entry was ill-founded, be entitled to
correction of the cancelled entry stamp, and any other cancellations or additions
which have been made, by the Member State which refused entry.
The border guards shall ensure that a third-country national refused entry does not
enter the territory of the Member State concerned.
i. Specific rules for border checks
The Schengen Border Code lays down specific rules for the various types of border
and the various types of means of transport used for crossing the external border,
such as ships and cruise vessels. These specific rules are set out in Annex VI of
the Code.
The Code, furthermore, consists of specific rules for checks for certain categories of
persons, such as seamen. These specific rules are set out in Annex VII of the Code.
- Annex VI – Specific rules for ships
General checking procedures on maritime traffic
Checks on ships shall be carried out at the port of arrival or departure, on board ship
or in an area set aside for the purpose, located in the immediate vicinity of the vessel.
However, depending upon agreement, checks may also be carried out during
crossings or, upon the ship’s arrival or departure, in the territory of a third country.
The purpose of these checks is to ensure that both crew and passengers fulfil the
entry conditions.
The ship’s captain or, failing that, the shipowner’s agent, shall draw up a list, in
duplicate, of the crew and of any passengers. At the latest upon arriving in the port,
this (these) list(s) shall be given to the border guards. However, if, for reasons of
force majeure, the list or lists cannot be sent to the border guards, a copy will be
sent to the appropriate border post or shipping authority, which shall forward it
without delay to the border guards. One copy of the two lists duly signed by the
border guard shall be returned to the ship’s captain, who shall produce it on request
when in port.
The ship’s captain,or failing that, the shipowner’s agent shall report to the competent
authority promptly any changes to the composition of the crew or the number of
passengers. In addition, the captain shall notify the competent authorities promptly,
and if possible even before the ship enters port, of the presence on board of
stowaways. Stowaways will, however, remain under the responsibility of the ship’s
captain.
The ship’s captain shall notify the border guards of the ship’s departure in due time
and in accordance with the rules in force in the port concerned. However, if the
captain is unable to notify them, he or she shall advise the appropriate shipping
authority. The second copy of the previously completed and signed list(s) shall be
returned to border guards or shipping authorities.
- Annex VI – Specific rules for cruise ships
The cruise ship’s captain or, failing that, the shipowner’s agent shall transmit to the
respective border guards the itinerary and the programme of the cruise, at least 24
hours before leaving the port of departure and before the arrival at each port in the
territory of the Member States.
If the itinerary of a cruise ship comprises exclusively ports situated in the territory of
the Member States, by way of derogation from the rules on crossing the external
border (Article 4) and border checks on persons (Annex 7), no border checks shall
be carried out and the cruise ship may dock at ports which are not border crossing
points. Nevertheless, on the basis of an assessment of the risks related to internal
security and illegal immigration, checks may be carried out on the crew and
passengers of those ships.
If the itinerary of a cruise ship comprises both ports situated in the territory of the
Member States and ports situated in third countries, border checks shall be carried
out in the manner as specified in Annex VI item 3.2.3 of the Code.
Border checks may be carried out on the basis of nominal lists of crew and
passengers, which shall include their name and surname, date of birth, nationality,
and the number and type of travel document and, where applicable, visa number.
The cruise ship’s captain or, failing that, the shipowner’s agent shall transmit to the
respective border guards the nominal lists at least 24 hours before the arrival at each
port in the territory of the Member States or, where the journey to this port lasts less
than 24 hours, immediately after the boarding is completed in the previous port.
The nominal list shall be stamped at the first port of entry into the territory of the
Member States and in all cases thereafter if the list is modified. The nominal list shall
be taken into account in the assessment of the risks related to internal security and
illegal immigration.
Annex VI – Specific rules for ferry connections
Checks shall be carried out on persons on board ferry connections with ports situated
in third countries, taking into account the rules set out in Annex VI item 3.2.10.
Important to note in this respect is that ferry crew members shall be dealt with in
the same way as commercial ship crew members.
- Annex VII – Specific rules for seamen
By way of derogation from the rules on crossing the external border (Article 4) and
border checks on persons (Annex 7), Member States may authorise seamen holding
a seafarer’s identity document issued in accordance with the Geneva Convention of
19 June 2003 (No 185), the London Convention of 9 April 1965 and the relevant
national law, to enter into the territory of the Member States by going ashore to stay
in the area of the port where their ships call or in the adjacent municipalities without
presenting themselves at a border crossing point, on condition that they appear on
the crew list, which has previously been submitted for checking by the competent
authorities, of the ship to which they belong.
However, according to the assessment of the risks of internal security and illegal
immigration, seamen shall be subject to a border check in accordance with Article 7
of the Code by the border guards before they go ashore.
If a seaman constitutes a threat to public policy, internal security or public health, he
may be refused permission to go ashore.
Seamen who intend to stay outside the municipalities situated in the vicinity of ports
shall comply with the entry conditions for third country nationals, as laid down in
Article 5(1).