Ad Hoc Query on searching electronic devices in the context of return
This ad hoc query, launched by EMN Belgium, explores whether authorities in EMN Member Countries are permitted to search the electronic devices of irregularly staying third-country nationals in the context of return. It examines the legal conditions under which such searches may take place, the categories of individuals concerned, the availability of related statistics, and the perceived impact on identification processes. The query also invites information on challenges encountered and any planned legislative developments in this area.
Background information
In April 2024, BE adopted legislation authorising certain officials from the Immigration Office to search the electronic devices, such as smartphones, tablets, and laptops, of irregularly staying TCNs who are suspected of being involved in criminal activities. This may only occur with the prior authorisation of a public prosecutor or investigating judge. This legislation aims to support faster and more reliable identification in the context of return procedures. Ahead of implementation in 2025, BE launched this ad hoc query to assess how other EMN Member Countries (EU Member States, except Denmark) and Norway regulate or implement similar practices.
Respondents
14 EMN Members (including BE) provided public responses to this ad hoc query.
Findings
A preliminary analysis of the ad hoc query results shows that:
- Seven responding countries (BE, CY, DE, HU, IT, LT, LV) allow authorities to search electronic devices in the context of return, generally under specific legal conditions. These may include a lack of cooperation, or use of false documents, suspicion of a criminal offence, and the measure is typically authorised only as a last resort, often requiring prior judicial approval.
- Among countries that allow such searches, several noted that the measure contributes to more effective and quicker identification, although no statistical data is currently collected on its use.
- Seven countries (BG, CZ, FI, FR, HR, SE, SI) do not currently allow authorities to search the electronic devices of irregularly staying third-country nationals in the context of return, except on a voluntary basis with the explicit consent of the individual concerned. However, several are considering legislative changes: FR is examining possible legal amendments, SE has proposed legislation expected to enter into force in 2025, and in the CZ, an amendment to the Asylum Act is under discussion that would, from 2026, allow police to access electronic devices for identification purposes if the person refuses to cooperate.
For further information, please refer to the summary of public answers to this ad hoc query. For additional details, the compilation of answers is attached above.