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Schengen Agreement

Published June 14, 1985

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Agreement

Schengen Agreement

The Schengen Agreement is a convention between Germany, France, and the countries of the Benelux Economic Union which allowed for "gradual abolition of checks at common borders." It was signed on June 14, 1985 and implementation began in March 1995, when the first borders were opened. In 1997, with the Treaty of Amsterdam, the Schengen Agreement was incorporated into the European Union legal framework. In 2011, as the number of refugees leaving conflict regions in North Africa and the Middle East increased, the European Commission began reviewing this agreement to clarify how countries in the Schengen Area should respond to asylum seekers. The EC released an update to the European Agenda on Migration on September 9, 2015.

Excerpt:

RESPONSIBILITY FOR PROCESSING APPLICATIONS FOR ASYLUM

Article 28

The Contracting Parties reaffirm their obligations under the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, with no geographic restriction on the scope of those instruments, and their commitment to cooperating with the United Nations High Commissioner for Refugees in the implementation of those instruments.

Article 29

1. The Contracting Parties undertake to process any application for asylum lodged by an alien within any one of their territories.

2. This obligation shall not bind a Contracting Party to authorising all asylum seekers to enter or remain within its territory.

Every Contracting Party shall retain the right to refuse entry or to expel asylum seekers to a third State on the basis of its national provisions and in accordance with its international commitments.

3. Regardless of the Contracting Party with which an alien lodges an application for asylum, only one Contracting Party shall be responsible for processing that application. This shall be determined on the basis of the criteria laid down in Article 30.

4. Notwithstanding paragraph 3, every Contracting Party shall retain the right, for special reasons connected in particular with national law, to process an application for asylum even if, under this Convention, the responsibility for so doing lies with another Contracting Party.

Article 30

1. The Contracting Party responsible for processing an application for asylum shall be determined as follows:

(a) If a Contracting Party has issued an asylum seeker with a visa, of whatever type, or a residence permit, it shall be responsible for processing the application. If the visa was issued on the authorisation of another Contracting Party, the Contracting Party which gave the authorisation shall be responsible.

(b) If two or more Contracting Parties have issued an asylum seeker with a visa, of whatever type, or a residence permit, the Contracting Party responsible shall be the one which issued the visa or the residence permit that will expire last.

(c) As long as the asylum seeker has not left the territories of the Contracting Parties, the responsibility defined in (a) and (b) shall remain even if the period of validity of the visa, of whatever type, or of the residence permit has expired. If the asylum seeker has left the territories of the Contracting Parties after the visa or the residence permit has been issued, these documents shall be the basis for the responsibility as defined in (a) and (b), unless they have expired in the meantime under national provisions.

(d) If the Contracting Parties exempt the asylum seeker from the visa requirement, the Contracting Party across whose external borders the asylum seeker entered the territories of the Contracting Parties shall be responsible.

Until the harmonisation of visa policies is fully achieved, and if the asylum seeker is exempted from the visa requirement by some Contracting Parties only, the Contracting Party across whose external borders the asylum seeker, through exemption from the visa requirement, has entered the territories of the Contracting Parties shall be responsible, subject to (a), (b) and (c).

If the application for asylum is lodged with a Contracting Party which has issued a transit visa to the asylum seeker - whether the asylum seeker has passed through passport control or not - and if the transit visa was issued after the country of transit had ascertained from the consular or diplomatic authorities of the Contracting Party of destination that the asylum seeker fulfilled the entry conditions for the Contracting Party of destination, the Contracting Party of destination shall be responsible for processing the application.

(e) If the asylum seeker has entered the territory of the Contracting Parties without being in possession of one or more documents, to be defined by the Executive Committee, authorising the crossing of the border, the Contracting Party across whose external borders the asylum seeker entered the territories of the Contracting Parties shall be responsible.

(f) If an alien whose application for asylum is already being processed by one of the Contracting Parties lodges a new application, the Contracting Party responsible shall be the one processing the first application.

(g) If an alien on whose previous application for asylum a Contracting Party has already taken a final decision lodges a new application, the Contracting Party responsible shall be the one that processed the previous application unless the asylum seeker has left the territory of the Contracting Parties.

2. If a Contracting Party has undertaken to process an application for asylum in accordance with Article 29(4), the Contracting Party responsible under paragraph 1 of this Article shall be relieved of its obligations.

3. Where no Contracting Party responsible can be determined on the basis of the criteria laid down in paragraphs 1 and 2, the Contracting Party with which the application for asylum was lodged shall be responsible.

Article 31

1. The Contracting Parties shall endeavour to determine as quickly as possible which Party is responsible for processing an application for asylum.

2. If an application for asylum is lodged with a Contracting Party which is not responsible under Article 30 by an alien residing within its territory, that Contracting Party may request the Contracting Party responsible to take charge of the asylum seeker in order to process the application for asylum.

3. The Contracting Party responsible shall be obliged to take charge of the asylum seeker referred to in paragraph 2 if the request is made within six months of the application for asylum being lodged. If the request is not made within that time, the Contracting Party with whom the application for asylum was lodged shall be responsible for processing the application.

Article 32

The Contracting Party responsible for processing an application for asylum shall process it in accordance with its national law.

Article 33

1. If an asylum seeker is illegally within the territory of another Contracting Party while the asylum procedure is in progress, the Contracting Party responsible shall be obliged to take the asylum seeker back.

2. Paragraph 1 shall not apply where the other Contracting Party has issued an asylum seeker with a residence permit valid for one year or more. In that case, responsibility for processing the application shall be transferred to the other Contracting Party.

Article 34

1. The Contracting Party responsible shall be obliged to take back an alien whose application for asylum has been definitively rejected and who has entered the territory of another Contracting Party without being authorised to reside there.

2. Paragraph 1 shall not, however, apply where the Contracting Party responsible expelled the alien from the territories of the Contracting Parties.

Article 35

1. The Contracting Party which granted an alien the status of refugee and right of residence shall be obliged to take responsibility for processing any application for asylum made by a member of the alien's family provided that the persons concerned agree.

2. For the purposes of paragraph 1, a family member shall be the refugee's spouse or unmarried child who is less than 18 years old or, if the refugee is an unmarried child who is less than 18 years old, the refugee's father or mother.

Article 36

Any Contracting Party responsible for processing an application for asylum may, for humanitarian reasons, based in particular family or cultural grounds, ask another Contracting Party to assume that responsibility provided that the asylum seeker so desires. The Contracting Party to which such a request is made shall consider whether it can be granted.

Article 37

1. The competent authorities of the Contracting Parties shall at the earliest opportunity send each other details of:

(a) any new rules or measures adopted in the field of asylum law or the treatment of asylum seekers no later than their entry into force;

(b) statistical data on the monthly arrivals of asylum seekers, indicating the main countries of origin and decisions on applications for asylum where available;

(c) the emergence of, or significant increases in, certain categories of asylum seekers and any information available on this subject;

(d) any fundamental decisions in the field of asylum law.

2. The Contracting Parties shall also ensure close cooperation in gathering information on the situation in the asylum seekers' countries of origin with a view to a joint assessment.

3. Any instruction given by a Contracting Party concerning the confidential processing of the information that it communicates must be complied with by the other Contracting Parties.

Article 38

1. Every Contracting Party shall send every other Contracting Party at their request any information it has on an asylum seeker which is necessary for the purposes of:

- determining the Contracting Party responsible for processing the application for asylum,

- processing the application for asylum,

- implementing the obligations arising under this chapter.

2. Such information may concern only:

(a) identity (surname and forename, any previous names, nicknames or aliases, date and place of birth, present nationality and any previous nationalities of the asylum seeker and, where appropriate, of the asylum seeker's family members);

(b) identity and travel documents (references, periods of validity, dates of issue, issuing authorities, place of issue, etc.);

(c) any other details needed to establish the asylum seeker's identity;

(d) places of residence and routes travelled;

(e) residence permits or visas issued by a Contracting Party;

(f) the place where the application for asylum was lodged;

(g) where appropriate, the date any previous application for asylum was lodged, the date on which the present application was lodged, the stage reached in the procedure and the decision taken.

3. In addition, a Contracting Party may ask another Contracting Party to inform it of the grounds invoked by an asylum seeker in support of an application and, where appropriate, the grounds for the decision taken on the asylum seeker. The Contracting Party requested shall consider whether it can comply with such a request. In all events the communication of such information shall be subject to the asylum seeker's consent.

4. Information shall be exchanged at the request of a Contracting Party and may only be exchanged between the authorities designated by each Contracting Party, once the Executive Committee has been informed thereof.

5. The information exchanged may only be used for the purposes laid down in paragraph 1. Such information may only be communicated to the authorities and courts and tribunals responsible for:

- determining the Contracting Party responsible for processing the application for asylum,

- processing the application for asylum,

- implementing obligations arising under this chapter.

6. The Contracting Party that forwards the information shall ensure it is accurate and up-to-date.

If it appears that a Contracting Party has supplied information that is inaccurate or should not have been forwarded, the recipient Contracting Parties shall be informed immediately thereof. They shall be obliged to correct such information or delete it.

7. Asylum seekers shall have the right to receive on request the information exchanged which concerns them as long as it remains available.

If they establish that such information is inaccurate or should not have been forwarded, they shall have the right to demand its correction or deletion. Corrections shall be made in accordance with paragraph 6.

8. Each Contracting Party concerned shall record the forwarding and receipt of information exchanged.

9. Information forwarded shall be held no longer than necessary for the purposes for which it was exchanged. The Contracting Party concerned shall assess in due course whether it is necessary for it to be held.

10. In any case, information thus forwarded shall enjoy at least the same protection as is provided for similar information in the law of the recipient Contracting Party.

11. If information is not processed automatically but is handled in some other form, each Contracting Party shall take the appropriate measures to ensure compliance with this Article by means of effective controls. If a Contracting Party has a body of the type referred to in paragraph 12, it may assign the control task to it.

12. If one or more Contracting Parties wishes to computerise all or part of the information referred to in paragraphs 2 and 3, such computerisation shall only be authorised if the Contracting Parties concerned have adopted laws applicable to such processing which implement the principles of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 and if they have entrusted an appropriate national body with the independent monitoring of the processing and use of data forwarded pursuant to this Convention.

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