Back in January 2019, we published an advice post, travel to the EU post-Brexit which set out our understanding of the European Travel Information and Authorisation System (ETIAS) in particular, questions relating to criminal records.

The ETIAS form will ask applicants to disclose convictions relating to specific offences over the previous 10 years (20 years for terrorist offences) and we would therefore expect most applicants to be automatically approved.

However, Home Secretary Priti Patel’s recent announcement (22 October) that “EU criminals could be banned from entering the UK under tighter border rules” has led to our helpline receiving calls from individuals concerned that this announcement could lead to the EU implementing similar requirements for UK citizens travelling to the EU.

EU citizens coming to the UK

The changes laid out mean that from 1 January 2021, EU citizens will be subject to the same rules that apply to non-EU citizens, namely:

• Those sentenced to at least one year in prison will be banned from entering the UK
• Those sentenced to less than one year in prison could also be banned, with the Home Office taking into account a person’s criminal record as well as their links to the UK, such as family members
• Individuals who haven’t received a prison sentence could be banned from entering the UK, if
  • Their offending is persistent or causes serious harm (such as sexual offences)
  • It is decided that their presence in the UK is not conducive to the public good, or
  • They have a criminal conviction of any kind in the past 12 months and are seeking to enter the UK for the first time.

EU, EEA and Swiss citizens arriving in the UK on or before 31 December who wish to work, study or visit and want to stay in the UK after 30 June 2021 should apply to the EU Settlement Scheme upon arrival in the UK. We have information on that here.

UK nationals travelling to the EU

As it stands, there is no long-term agreement with the EU on trade and some other key areas when the transition arrangement expires. The UK faces losing access to the European Criminal Records Information System (ECRIS) which means it will not be possible for UK authorities to check the criminal record of an EU citizen. Likewise, should a similar system be implemented by the EU, the criminal record of UK travellers couldn’t be checked either. Unless an agreement is reached with the EU in relation to the sharing of criminal record data, the system will be reliant on an individual’s honesty when self-disclosing.

Whilst visitors from the UK could, in theory, be asked to provide a police certificate to evidence their criminal record, this would increase the cost of a family holiday and is probably unlikely to get agreement from countries in the EU who are reliant on tourism.

There are still a lot of arrangements which need to be finalised before the transition period ends at the end of this year (travel included) and we will publish more details as we become aware of them.

At the end of 2018, the EU Commission confirmed that UK citizens will need approval via the European Travel Information and Authorisation System (ETIAS) to travel to the EU as a result of Brexit. It’s believed that EU citizens and UK nationals will continue to be able to travel freely with a passport or identity card until the end of the transition period in 2020.

This led to a number of people contacting us asking about what implications this might have for people with criminal records, so we committed to producing some information on how the ETIAS works. Obviously, at this stage what we say is based on the assumption that the ETIAS process will be the same for UK nationals and our understanding of how the system will work once it is fully introduced.

The application form will probably take about 10 minutes to complete and will cost £6.30. It’ll need to be completed by all travellers between the ages of 18 and 70 and will be done online.

Each applicant will be asked to provide a range of personal details, including:

• Name, date and place of birth, gender, current nationality, names of applicants parents;
• Other names or nationalities, if any;
• Passport details;
• Home address;
• Email address and telephone number if available;
• Education (primary, secondary, higher or none);
• Current occupation selected from a pre-determined list;
• Details of the Member State being visited.

In addition, you will also be asked the following questions:

1. Have you been convicted of any criminal offence listed in the Annex (see below) over the previous 15 years and in the case of terrorist offences, over the previous 25 years, and if so when and in which country?
2. Have you stayed in a specific war or conflict zone over the previous 10 years and if so, the reason for your stay?
3. Have you been subject to any decision requiring you to leave the territory of a Member State or have you been subject to any return decision issue over the previous 10 years?

If your criminal record falls outside of the scope of the question (for example, an arson conviction from 20 years ago, a caution, or a recent conviction for theft), then you can answer ‘No’ and your criminal record shouldn’t be a barrier.

If your criminal records falls within the scope of the question, you will need to answer ‘Yes’ to the above question and you will then be required to provide answers to an additional set of predetermined questions on the application form by selecting from a predetermined list of answers. So far, we haven’t had sight of these questions.

Step 1 – The automatic process

Applications will be automatically processed by the ETIAS Central System which will have access to your application file together with any other linked application files and any ‘hits’ (namely questions 1-3 above) triggered during the automated processing. The ETIAS Central Unit will verify whether the data recorded in your application file corresponds to one or more of the following:

• Specific risk indicators relating to security, illegal immigration or high epidemic risks;
• Data present in the ETIAS Central System, including the ETIAS watch-list;
• Data present in one of the EU information systems that are consulted;
• Europol data;
• Data present in the Interpol, Stolen and Lost Travel Documents and Travel Documents Associated with Notices databases.

We expect most people with criminal records will only need to go through the automatic process, because their conviction will be older, not serious enough or not of the type of offence covered, and so will be able to answer no to the 3 questions above. This will mean that their application will be automatically approved.

Step 2 – The manual process

Where the automated process reports one of more ‘hits’ your application will be passed to the ETIAS National Unit for manual processing . The National Unit will be responsible for assessing the risk you pose based on your criminal record, security, illegal immigration etc. They will then:

1. issue you with a travel authority
2. refuse your travel authority

The results of the assessment and the justification behind the decision to issue or refuse a travel authorisation will be recorded in the application file by the staff member performing the risk assessment.

Where the National Unit deem the information you’ve provided to be insufficient to enable it to make a decision you may be asked to provide further information/documentation. In exceptional circumstances and as a last resort, if serious doubts remain regarding information or documentation provided by you, the National Unit may invite you to an interview in your country of residence. You will be told in advance which elements of your application will be addressed by the interviewer.

At this stage we still have a lot of questions (like a lot of things Brexit-related). We will be publishing more details as we learn more about travelling to the EU post-Brexit.