Background:

Under the EU acquis, the search of items carried by persons applying for international protection can be carried out in accordance with national law. Article 13 of the Asylum Procedures Directive (2013/32/EU) regulates the search of applicants and the items they carry. In addition, certain rules of the new Pact on Migration and Asylum, which relate to this issue, will be implemented in Member States by summer 2026.

Finland has begun drafting legislation for the search of electronic devices as part of the asylum procedure, examining electronic devices - especially mobile phones - in the possession of asylum seekers. In this context, EMN Finland launched this ad hoc query to identify relevant legislation and practices of other EMN Member and Observer Countries.

Respondents:

22 EMN Member Countries (including BE) gave a public answer to this ad hoc query.

Findings:

A preliminary analysis shows i.a. that:

• In 9 EMN Member Countries (BG, CZ, FI, FR, LT, LV, PL, SL, SE) it is not possible to read out mobile devices carried by applicants for international protection. In CY, this is only possible in two cases: when there is a written consent of the asylum seeker or a judicial search warrant. Consent is also required in EE, but EE is considering future legislative changes to allow the search of such devices without the consent of the individual. In PT, devices can only be searched if there are suspicions of a possible threat to national security, organised crime, or terrorism. Similarly, in SK, searches are possible only when there are suspicions of criminal activity. In BE, Article 48/6 §1(4) of the Aliens Act allows authorities to ask asylum seekers for essential information if they suspect that the asylum seeker is withholding this information. Refusal to cooperate without a valid reason may indicate non-cooperation. However, a Royal Decree is needed to regulate GDPR aspects such as data retention and security. As this decree has not yet been issued, there is currently no procedure for examining mobile phones and other devices of asylum seekers.
   
• When asked about the purpose of searching devices in connection with the asylum procedure, EMN Member Countries cited the following reasons: identification, documentation, determining the responsible State, travel route, determining the country of origin, the situation in the country of origin and aspects relevant to national security and public order.

More information can be found in the compilation of answers attached above.