How to prevent or fight an entry ban
Being given an entry ban can not only be an incredibly stressful experience, but it can also have serious consequences for your life, your work and your future plans. In this article, Everaert Advocaten explains how you can prevent being issued an entry ban, and what to do if you do get one.
An EU entry ban, not to be confused with the COVID-19 travel ban, can be issued against a foreign national who resides illegally on the territory of the European Union, EEA (except Ireland) or Switzerland (hereinafter: EU) and who is not a person enjoying the right of free movement under EU law. The measure prohibits an individual from entering and staying on the territory of the EU for a certain period.
How can you prevent an entry ban and what can you do when you are faced with one?
When is an entry ban issued?
An entry ban is always preceded by a return decision; an administrative decision stating that you are not or no longer residing legally on the territory of the EU and that you must return to your country of origin. The return decision states whether you are granted a period for voluntary departure. If you have not returned within this grace period or you were not allowed a grace period, you can receive an entry ban.
You can get an entry ban when you have overstayed your visa period or your visa-exempt period. You may also receive an entry ban when you are suspected of or convicted of committing a criminal offence.
You can get an entry ban as part of a decision to withdraw your residence permit or reject your application, or it can be issued in a separate decision.
Duration of your entry ban
The duration of the entry ban depends on the circumstances. For example, an overstay of over three and up to 90 days can lead to an entry ban of one year. An entry ban of two years can be issued for an overstay of 90 days or more, or for “light” criminal offences. The length of the ban can increase up to five years when you have ignored previous return decisions or entry bans, or up to 10 or even 20 years when you are considered a serious threat to public or national security.
The issuing authority must have due regard for all relevant individual circumstances when deciding on issuing an entry ban and determining its duration, such as family situations and health problems. You should always be given the opportunity to demonstrate those circumstances.
The day you leave the territory of the EU is when the entry ban comes into effect.
Legal residency in another member state
If you have legal residency in another EU member state, it is not possible to get an entry ban valid for the whole EU. Consequently, demonstrating your residency rights to the authority that wants to issue the entry ban is of significant importance. If another EU member state intends to approve your application for legal residency after being issued an entry ban, the entry ban may be lifted. EU member states are obliged to consult each other on the impact of an entry ban when the issuance or existence of a residence permit is at stake.
If you are overstaying your visa or visa-exempt period and present yourself to the Dutch border control at the airport briefly before departure, issuance of an entry ban can be initiated. The border authorities will give you a return decision accompanied by a letter that announces the intent to issue an entry ban at a later stage. This is often done when there is not enough time before departure to issue the entry ban.
You will get a limited amount of time to respond to the letter by digital or regular mail. The Dutch authorities must consider any relevant individual circumstances that you have raised, such as family interests or important work obligations which require access to the EU territory.
If you do not submit your response within the deadline, the entry ban is usually imposed. The entry ban will be sent to your foreign address and published in the Dutch Government Gazette (Staatscourant).
Consequences of an entry ban
Being in the Netherlands despite an entry ban is a criminal offence and can be sanctioned with a fine or prison sentence of up to six months. Additionally, the entry ban can be replaced with a ban of a longer duration.
Entry bans are registered in the national list of alerts or a database called the Schengen Information System II (SIS II). SIS II is accessible to authorities of all Schengen countries. They will be alerted when you present yourself at the border, are held up on Schengen territory or when you apply for a Schengen visa.
Even if the entry ban is no longer in effect, it is possible that the alert is not yet removed from the database. It is important to verify that the alert has been removed, before travelling to the Schengen area.
The end of an entry ban
The entry ban can be objected to or appealed against. This must be done within four weeks after the date on which the entry ban was issued. It is also possible, at any time, to request for the entry ban to be (temporarily) lifted. Whether the request will be granted, depends on the situation.
Some entry bans will be automatically lifted, for example when you meet all conditions for residency for family reunification.
Your entry ban will automatically become ineffective if the duration of the entry ban has passed and you have met all conditions. It may be necessary to demonstrate this to the authorities, before you receive confirmation that your entry ban is no longer in effect.
When you are faced with a potential entry ban, specialised legal advice can help you explore ways to prevent it, or successfully have an entry ban removed. For more information, get in touch with Everaert Advocaten or contact Everaert lawyer Lotte van Diepen, at [email protected].