EU Entry/Exit System: How to Challenge an EES False Overstay

Introduction

An EES false overstay can be challenged under European Union law. Travelers whose entry or departure records are inaccurate have the right to request access to their personal information, present evidence of their actual movements, and seek correction through the competent national authorities. Regulation (EU) 2017/2226 establishes procedures for rectification, completion, and erasure, while the Schengen Borders Code allows individuals to rebut certain presumptions of unlawful stay through credible evidence. Administrative and judicial remedies are also available when authorities refuse to correct an error or fail to respond within the prescribed deadline.

The European Union's Entry/Exit System (EES) became fully operational on April 10, 2026, following progressive deployment that began on October 12, 2025. It electronically registers the entry and departure of eligible non-EU nationals traveling for short stays and assists border authorities in calculating their remaining authorized stay. An incorrect or missing departure can make a completed journey appear to be continuing, potentially causing the system to identify someone as an overstayer despite their compliance with immigration rules (Regulation (EU) 2017/2226, arts. 11–12; European Commission, 2026).

The consequences became particularly visible in November 2026, when the British consumer organization Which? reported that novelist Jojo Moyes had been questioned by French border officers following an apparently unregistered departure from Portugal. According to the investigation, Moyes maintained that she had spent only 23 days in the Schengen Area during the preceding six months. The incomplete record allegedly suggested that she had exceeded the permitted stay, creating difficulties when she attempted to establish her actual travel history (Which?, 2026).

The legal distinction is between an automated indication of overstaying and a justified determination that a person has violated immigration law. EES information may influence border examinations and subsequent administrative decisions, but its records are subject to enforceable accuracy requirements. Correcting an erroneous registration may also differ from challenging a refusal of entry, return decision, or entry ban based on that information. These procedures provide distinct forms of protection when inaccurate electronic records interfere with an individual's ability to travel.

1. How to Challenge an EES False Overstay

A traveler who discovers an incorrect EES overstay classification can request correction through the competent authorities of a country participating in the system. Article 52 of Regulation 2017/2226 establishes procedures concerning access, rectification, completion, erasure, and restriction of processing. Individuals do not need to accept an automated calculation as legally conclusive before exercising these rights.

The appropriate request depends on the discrepancy. If a departure is missing, the relevant authority may need to complete the entry/exit record. If an incorrect date has been registered, rectification may be necessary. Where an individual has been wrongly identified as an overstayer, Article 35 provides for correction of the underlying information and removal from the relevant list when the statutory conditions are satisfied.

A formal request should identify the disputed journey and provide evidence supporting the correction sought. Although border officers may identify and resolve discrepancies during an examination, travelers can also invoke their data-protection rights independently. This is particularly important where an error becomes apparent only after someone has returned home or when another journey is approaching.

1.1 Identifying the incorrect entry or exit record

The first question is whether the EES contains an accurate history of the traveler's movements. An entry may have been registered correctly while the corresponding departure is missing. Alternatively, the dates may be wrong, a crossing may have been associated with an incorrect individual file, or multiple registrations may exist for the same person.

The Royal Netherlands Marechaussee, the Dutch border-control authority, expressly recognizes missing registrations, duplicate files, and discrepancies between electronic data and actual travel movements as possible EES problems. Its official guidance also identifies inaccurate authorized-stay calculations and difficulties using automated border gates as potential consequences (Royal Netherlands Marechaussee, n.d.).

An individual who cannot identify the precise error can invoke the right of access under Article 52 of the EES Regulation, read with Article 15 of the General Data Protection Regulation (GDPR). Access can help establish which personal information and border-crossing records are being processed. The EU's online authorized-stay verification service may reveal a suspicious calculation, but consulting that service is not equivalent to obtaining the personal data needed to examine a disputed record.

These rights belong to a wider European framework protecting personal information against inaccurate or unlawful processing. Article 8 of the Charter of Fundamental Rights of the European Union expressly recognizes the right to personal-data protection. The relationship between individual privacy, institutional accountability, and data protection as a human right provides additional context for the safeguards applicable to records maintained by public authorities.

1.2 Gathering evidence of the actual travel history

Article 12(3) of the Schengen Borders Code allows a traveler to rebut the relevant presumption of unlawful stay through any means of credible evidence. The provision expressly recognizes transport tickets and evidence of presence outside the territory concerned. It does not establish an exclusive list of acceptable documents or require every individual to produce identical proof.

A boarding pass associated with a completed flight may help establish departure from the Schengen Area. Confirmation from an airline, immigration records from another country, and passport stamps can provide further support. Employment, accommodation, university, or medical records may also demonstrate that a traveler was physically outside Schengen territory during the period in dispute.

The evidentiary distinction between booking a journey and completing it is significant. A reservation establishes an intention or arrangement to travel but does not necessarily demonstrate that the passenger boarded the aircraft. Evidence issued by a border or immigration authority may be particularly useful where it directly confirms the date, place, and circumstances of departure.

No single document is guaranteed to resolve every dispute. The competent authority must assess the credibility and sufficiency of the evidence in the circumstances of the case. Preserving original documents and copies of relevant correspondence can help establish a consistent account of the journey, especially where the administrative investigation involves authorities in several countries.

1.3 Submitting a formal correction request

Article 52(1) of Regulation 2017/2226 permits requests concerning EES personal data to be addressed to the competent authority of any participating Member State. The Member State responsible for entering the disputed information ordinarily retains primary responsibility for its accuracy. Identifying the country where the allegedly incorrect crossing occurred may consequently make the procedure more straightforward.

The EU maintains an official directory entitled Contact Details for Data Protection Matters, accessible through the EES information portal. It identifies national contact points for exercising rights concerning EES data. Travelers can use this directory to locate the competent authority or data protection officer, particularly in the country through which they last entered or exited the Schengen Area.

The request should contain sufficient information to identify the applicant and the disputed registration. Relevant details include the travel document, the date and location of the crossing, the reason the electronic record is considered inaccurate, and the documents supporting that explanation. The applicant should identify the corrective action sought rather than simply complain that the system is wrong.

For example, someone who departed Portugal for the United Kingdom but whose exit remains unregistered can request verification of that departure, completion of the missing record, correction of the resulting overstay classification, and written confirmation of the changes. A request for erasure has a different legal purpose and cannot ordinarily justify deleting accurate information that the EES is legally required to retain.

Reporting a malfunction through the EES website's technical-issue form is not equivalent to requesting correction of an individual's travel history. The official website directs questions concerning remaining authorized stays and disputed results to the competent national authorities. A formal request should use the designated data-protection contact channel rather than rely exclusively on a general website complaint.

The authority may request information necessary to verify the applicant's identity. Article 52(6) restricts requests for additional fingerprints to duly justified cases involving substantive doubts about identity. Article 52(7) also requires the competent authority to maintain a record of the request and how it was handled, making proof of submission and subsequent correspondence particularly valuable if further proceedings become necessary.

2. Why EES Records Can Produce False Overstays

Regulation (EU) 2017/2226 established the EES to record border crossings, calculate authorized stays, and identify individuals who appear to have exceeded their permitted duration of residence. Its functions are intended to assist immigration administration by providing electronic information concerning travel movements and relevant authorizations.

The system records information about eligible third-country nationals, including identity details, travel documents, entry and departure information, and biometric identifiers where required. Those records provide an administrative basis for assessing whether an individual remains within the permitted period. Their accuracy is consequently significant for both travelers and national authorities.

An incorrect classification can arise because the recorded information does not correspond to the traveler's actual movements. It may also result from incomplete information concerning a change in the individual's legal entitlement to remain. These possibilities should not be treated as evidence of one common technical defect without an investigation establishing the cause.

2.1 Automated calculations and the Schengen 90-day rule

Article 6(1) of the Schengen Borders Code generally limits qualifying short stays to 90 days within any rolling 180-day period. The day of entry and the day of departure are ordinarily counted as days of stay. The calculation applies across the relevant Schengen territory rather than granting a separate allowance for every participating country.

A traveler who spends 30 days in France and subsequently 40 days in Spain has ordinarily used 70 days of the applicable allowance, assuming both visits fall within the relevant 180-day period and no different legal status alters the calculation. A short-stay visa may impose additional restrictions, including a shorter permitted duration, limited validity, or a specified number of entries.

The distinction between the European Union and the Schengen Area is also relevant. Ireland and Cyprus are outside the Schengen Area, while Iceland, Liechtenstein, Norway, and Switzerland participate despite not being EU Member States. Time spent visiting Ireland does not ordinarily consume the Schengen short-stay allowance. The EES operates within its own participating-country framework, which must be distinguished from EU membership.

Article 11 of the EES Regulation establishes the automated calculator, while Article 12 provides for identifying individuals whose records indicate that their authorized stay has expired. These mechanisms depend on the information available within the system. A missing departure may cause an earlier stay to appear uninterrupted even though the traveler crossed the external border before exhausting the permitted days.

2.2 Missing departures and duplicate identity records

A missing exit record can affect more than the calculation associated with one journey. Where no departure appears after the relevant authorization expires, the EES may identify an apparent overstay. Subsequent checks may rely on the incomplete record until the discrepancy has been investigated and corrected.

Duplicate identity records present a different difficulty. Where separate files relate to the same individual, information concerning entry and departure may not appear together in the expected record. The Dutch border authority's acknowledgment of duplicate registrations establishes that this category of problem is recognized administratively, although it does not establish how frequently it occurs throughout the EES.

The November 2026 reporting concerning Jojo Moyes illustrates the possible consequences of an omitted departure. According to Which?, the novelist was questioned at Marseille airport after an earlier departure from Portugal apparently failed to appear correctly in her travel history. She disputed the resulting overstay allegation and reportedly encountered difficulties obtaining confirmation that the information would be amended (Which?, 2026).

The investigation also described requests for additional documentary evidence and correspondence with Portuguese authorities. These circumstances illustrate the difference between possessing documents supporting a departure and obtaining the corresponding correction in a multinational information system. They do not establish the precise technical cause of the missing registration or the outcome of any final administrative review.

Official information does not establish a reliable EU-wide false-overstay rate from these individual reports. The number of recorded overstayers, refusals of entry, and successful correction requests represent different categories of information. None can automatically be treated as a measure of the proportion of travelers incorrectly classified by the system.

2.3 Transitional registration and technical interruptions

The EES began progressive operations on October 12, 2025, before reaching full deployment on April 10, 2026. Regulation (EU) 2025/1534 established temporary arrangements allowing electronic registration to be introduced gradually. During that period, electronic records and passport stamps operated alongside one another.

Article 5(3) of Regulation 2025/1534 established particular safeguards concerning the evidentiary treatment of stamps and electronic records. Where no relevant EES information existed, stamps generally prevailed. Where biometric EES information conflicted with a stamp, the Regulation prescribed a different treatment. Other specified discrepancies required an individual assessment rather than an automatic preference for either record.

The same provision prohibited national authorities and Europol from taking decisions adversely affecting individuals solely because an alleged entry or exit was absent from the EES. Article 5(6) went further by requiring those authorities to disregard the results of the automated authorized-stay calculator and the automatically generated overstayer list, including the consequences specified in the Regulation, during progressive deployment.

These temporary safeguards recognized that electronic records could remain incomplete while registration was being introduced. The special obligation to disregard the automated calculator and overstayer list applied during the progressive period. It should not be confused with the separate protections that remain applicable to historical records after full deployment.

Article 6(1) of Regulation 2025/1534 establishes an important continuing safeguard. National authorities and Europol must take account of the possible incompleteness of EES records created during progressive implementation when accessing those records in the performance of their duties. The provision also addresses the use of such information for specified data communications, verification, reporting, and statistical purposes.

Article 8(2)(a) expressly extends the application of Article 6(1) for five years and 180 days from the EES start date of October 12, 2025. Consequently, the legal obligation to account for incomplete records from progressive deployment continues well beyond April 10, 2026. The expiry of the rollout period does not permit authorities to disregard the historical limitations of information collected during that period.

Article 6(3) remains applicable for the same extended period. When fulfilling obligations concerning completion of EES personal data under Articles 35 and 52 of Regulation 2017/2226, Member States must complete the relevant information to the extent possible, taking account of the limited data collected during progressive implementation. Where applicable, an administrative refusal must also refer to the rollout requirements that permitted incomplete files.

This continuing protection is especially relevant when a disputed journey occurred between October 2025 and April 2026. A missing registration may reflect the legally authorized limits of data collection during progressive implementation rather than a later malfunction. Authorities must assess those circumstances when examining historical records and deciding whether the information can be completed.

Regulation 2025/1534 also adjusted the operation of the ordinary transitional provisions in Article 22 of Regulation 2017/2226 and Article 12a of the Schengen Borders Code. Under Article 5(13), the transitional period and measures established by those provisions began after progressive deployment ended. Their application must be understood alongside the continuing safeguards concerning incomplete historical records.

Technical interruptions are separately governed by Article 21 of Regulation 2017/2226. Where information cannot be entered into the central system, temporary electronic storage is required through the applicable national arrangements. In exceptional circumstances where electronic registration is also technically impossible, the Regulation provides for manual recording and passport stamping, followed by electronic registration when feasible.

Continued operational difficulties have raised additional questions about EES implementation in nine Schengen states. Uneven implementation may affect the procedure encountered at a particular crossing, but a missing departure cannot automatically be attributed to congestion, suspended biometric registration, or equipment failure. The cause of an individual discrepancy requires examination of the relevant facts.

3. The Legal Right to Rebut an Overstay Classification

The principal legal protection against a false overstay is the ability to challenge the information and assumptions underlying the classification. EU law recognizes that an absent electronic record does not conclusively establish unlawful residence. The applicable provisions require national authorities to assess credible evidence and correct information when the statutory conditions are satisfied.

Two mechanisms operate together. Article 12 of the Schengen Borders Code addresses a presumption concerning compliance with the authorized duration of short stays. Articles 20 and 35 of Regulation 2017/2226 govern the corresponding treatment of EES information and the removal of qualifying individuals from the identified-overstayers list.

Their functions are distinct. Rebutting a presumption concerns whether the available evidence justifies treating someone as having exceeded the permitted stay. Rectification and completion concern the accuracy of information retained in the administrative system. A disputed journey may require both forms of protection.

3.1 The rebuttable presumption under the Schengen Borders Code

Article 12(1) of Regulation (EU) 2016/399, as amended for the EES, permits a presumption of noncompliance in specified circumstances involving a third-country national present within a Member State's territory. These include the absence of an individual EES file or a missing exit date after the authorized period has expired. The provision concerns compliance with the conditions governing the duration of short stays.

The presumption is not an automatic finding that an immigration offense has been committed. Its application depends on the circumstances identified in Article 12, and it remains open to rebuttal. A refusal of entry at an external border raises a separate legal question governed by the applicable entry conditions and Article 14 of the Schengen Borders Code.

Article 12(3) permits rebuttal through any means of credible evidence. Transport documentation, evidence of presence outside the relevant territory, and information concerning previous residence permits or long-stay visas may demonstrate that the apparent overstay did not occur. The authority must assess whether the submitted material establishes compliance with the applicable short-stay conditions.

Consider a traveler who entered Spain and departed for Morocco before the expiry of the authorized period. If the departure is absent from the EES, the electronic history may suggest a continuing stay. Evidence from Moroccan immigration authorities, transport records, and other reliable documentation may establish that the traveler crossed the external border on the disputed date.

Where the presumption is successfully rebutted, Article 20 of Regulation 2017/2226 requires the competent authorities to take the applicable corrective action. This may involve creating an individual file, updating an entry/exit record with missing information, or erasing a file where Article 35 permits that result. The legal process is not confined to accepting the traveler's explanation while leaving the underlying discrepancy unresolved.

3.2 Correction and removal from the EES overstayer list

Article 35(2) of Regulation 2017/2226 requires the responsible Member State to investigate evidence suggesting that information is inaccurate, incomplete, or processed contrary to the Regulation. Where necessary, the authority must rectify, complete, or erase the information without delay. The obligation may also require corresponding changes to the list of identified overstayers.

Article 35(5) provides a more specific safeguard. It requires removal from the identified-overstayers list and appropriate correction or completion of EES information where the individual establishes, according to the applicable national evidentiary rules, that the apparent overstay resulted from an error, that a legal right to stay was acquired, or that unforeseeable and serious events forced the person to exceed the authorized period.

These situations are legally different. A missing departure may establish that no overstay occurred. A subsequently acquired legal right to remain may alter the individual's entitlement independently of the original short-stay authorization. Serious unforeseen circumstances may justify removal from the overstayer list even where the person physically remained beyond the previously permitted duration.

Correction also affects data retention. Article 34 generally prescribes three years for an entry/exit or refusal record following the relevant exit or refusal, subject to the Regulation's rules concerning associated individual files. Where no exit is recorded following expiry of the authorized stay, Article 34(3) provides for retention for five years from that expiry.

An incomplete departure record may consequently affect how long information remains available in the system. Obtaining a formal correction is more significant than receiving an informal assurance that an officer understands the circumstances. Article 35(5) also guarantees access to an effective judicial remedy to ensure that the necessary correction, completion, or erasure occurs.

4. When the Overstay Calculation Ignores a Legal Right

An apparent overstay does not always arise from an incorrect crossing date. The EES may contain an accurate chronological record while the resulting classification fails to reflect the person's legal entitlement to remain. Immigration status can alter the rules applicable to the individual.

Regulation 2017/2226 distinguishes between third-country nationals subject to ordinary EES registration and categories excluded from its scope or from particular automated calculations. Those distinctions are especially relevant to residence-permit holders, long-stay visa holders, and certain beneficiaries of EU free-movement rights.

The legal inquiry must identify both the recorded movements and the applicable immigration status. Correcting a travel date alone may not resolve a classification based on an incorrect assumption about a person's entitlement to stay. Conversely, possession of a document does not establish an exemption unless its legal conditions are satisfied.

4.1 Residence permits, long-stay visas, and free movement

Article 2(3) of the EES Regulation excludes several categories of individuals, including holders of qualifying residence permits and long-stay visas. The provision also contains exclusions concerning certain family members who possess the required residence documentation under EU free-movement law. Its application depends on the legal status of the person and the documents concerned.

Article 2(4) separately addresses certain family members exercising rights derived from EU free-movement law who lack the specified residence card or permit. Although their crossings may fall within the registration regime, the ordinary automated stay-calculation and overstay-identification provisions do not apply to them in the same manner as they do to short-stay visitors.

This distinction reflects the different legal foundations of residence. An individual exercising a qualifying derived free-movement right cannot automatically be treated as an ordinary visitor whose position depends solely on the general short-stay allowance. Directive 2004/38/EC establishes relevant rights for EU citizens and qualifying family members, subject to its conditions.

British nationals ordinarily no longer possess general EU free-movement rights solely through British nationality following Brexit. Nevertheless, qualifying individuals may retain protections under the Withdrawal Agreement, while others may hold a separate residence permit or authorization. The distinctions between UK–EU freedom of movement and residence rights help explain why nationality, residence status, and short-stay permission are not interchangeable.

Article 12(2) of the Schengen Borders Code prevents the relevant presumption from applying where a person credibly establishes qualifying free-movement rights or possession of a residence permit or long-stay visa. The authority must assess the legal effect of that evidence rather than applying the ordinary short-stay calculation without regard to the individual's status.

4.2 Lawful extensions and serious unforeseen circumstances

A traveler may lawfully remain beyond the duration initially authorized where the competent authority grants an applicable extension. Article 19 of Regulation 2017/2226 governs the inclusion of information concerning changes to short-stay authorizations, including relevant extensions. If such a decision is not correctly reflected in the system, the calculation may rely on outdated information.

The evidentiary issue differs from proving an unregistered departure. The individual must establish the relevant authorization and its legal effect during the disputed period. An official extension decision or other legally effective document may demonstrate that the person remained entitled to stay despite the earlier expiry date appearing in the EES.

Article 35(5) also addresses individuals forced to exceed their authorized stay because of unforeseeable and serious events. Its wording recognizes circumstances in which a traveler genuinely remained longer than permitted but may qualify for correction of the EES classification. A serious medical emergency or another unexpected event may be relevant if the statutory conditions are satisfied.

Difficult circumstances do not automatically establish entitlement to relief. The individual must provide evidence meeting the applicable requirements, including the connection between the event and the inability to depart. National authorities assess that evidence under the relevant procedures and evidentiary rules.

Removal from the EES overstayer list should not be confused with universal retroactive authorization of the entire stay. Separate immigration decisions or national administrative consequences may require independent consideration. The statutory remedy concerns the EES information and the specific circumstances recognized by Article 35.

5. When Authorities Refuse or Fail to Correct EES Data

A legal right to correction would provide limited protection without procedures for challenging administrative refusal or inaction. Regulation 2017/2226 addresses both problems through specific response requirements and remedies. A competent authority cannot treat a properly submitted request as a matter entirely outside its legal obligations.

The procedures distinguish between an authority that has not yet decided a request and one that concludes the recorded information is accurate. An unresolved investigation may require further evidence, while a refusal must comply with the requirements governing administrative decisions. Different consequences arise when the statutory response period expires without an answer.

EU law also establishes supervisory and judicial protections. These operate alongside the responsibilities of national border and immigration authorities, and their implementation depends partly on national law. Their practical effectiveness is especially important when an incorrect record interferes with future travel.

5.1 Statutory deadlines and written administrative decisions

Article 52(1) requires the responsible Member State, or the Member State receiving the request, to reply within 45 days of receipt. This is a statutory response deadline. It does not guarantee that every disputed record will be corrected within 45 days or that the applicant will receive a favorable decision.

Article 52(2) establishes additional arrangements for requests submitted to a Member State other than the one responsible for the data. Where verification can be conducted independently, the receiving authority must check the accuracy and lawfulness of processing within 30 days. Otherwise, it must contact the responsible Member State within seven days, after which that state has 30 days to conduct the relevant examination.

These periods reflect the need for cooperation between national authorities administering a shared information system. A traveler may discover the error in one country although the disputed registration originated elsewhere. The receiving authority's procedural obligations are not extinguished by that division of responsibility.

Article 52(3) requires written confirmation without delay when the necessary correction, completion, erasure, or restriction has been carried out. Where the authority rejects the request, Article 52(4) requires an administrative decision explaining the refusal. Article 52(5) requires information concerning the available procedures for challenging that decision.

The distinction between a legal deadline and administrative performance has practical consequences. The Royal Netherlands Marechaussee has acknowledged that some correction functionality may not permit immediate amendment and that authorities may use the full statutory period. Those operational limitations do not eliminate the rights established by the Regulation.

5.2 Data protection complaints and judicial protection

Articles 53–55 of Regulation 2017/2226 establish responsibilities concerning cooperation and data-protection supervision. National supervisory authorities can assist individuals exercising their rights and cooperate where a request concerns information maintained by another participating country. Their function differs from that of the border authority responsible for entering or amending the record.

The GDPR provides additional safeguards within its applicable scope. Article 77 establishes a right to complain to a supervisory authority, while Article 79 concerns an effective judicial remedy against a controller or processor for an alleged infringement. The specific EES provisions remain central because they directly govern the system and its correction procedures.

Article 54 of the EES Regulation expressly provides remedies where access, rectification, completion, or erasure has been refused. It also covers requests that have not been answered within the statutory deadline or have never been addressed. The assistance of the competent supervisory authority remains available during the proceedings.

Article 47 of the Charter of Fundamental Rights establishes the broader guarantee of an effective remedy and a fair hearing in matters involving rights guaranteed by EU law. Its application does not eliminate national procedural requirements concerning jurisdiction, filing, admissibility, or the form of judicial review.

The distinction between possessing a legal entitlement and satisfying the conditions for a particular judicial proceeding is important. National courts apply rules concerning competence, standing, and procedure, subject to EU requirements of effective judicial protection. The rights available in an EES dispute must be assessed under the applicable EU and national procedural rules rather than assumed to follow a uniform judicial process throughout Europe.

5.3 Compensation for damage caused by unlawful processing

Article 45(1) of Regulation 2017/2226 provides for compensation where a person suffers material or immaterial damage resulting from unlawful processing or an act contrary to the Regulation. Liability concerns the Member State responsible for the damage, subject to the statutory conditions and available defenses.

The provision may become relevant where inaccurate EES information causes measurable consequences. Additional travel expenses, costs associated with an unsuccessful journey, or other documented losses may support a claim where the applicable requirements are satisfied. Non-material damage may also be relevant, although the claimant must establish the necessary legal and factual elements.

An error in the database does not automatically establish liability. The claim requires examination of the relevant unlawful conduct or failure, the damage suffered, and the causal relationship between them. Article 45 also permits a Member State to avoid liability, in whole or in part, where it proves that it bears no responsibility for the event giving rise to the damage.

Article 45(3) provides that compensation claims against a Member State are governed by the relevant provisions of that state's national law. Article 82 GDPR may also apply where its own conditions are satisfied. The two provisions have distinct legal bases, and the applicability of one cannot simply be assumed from the existence of the other.

In UI v Österreichische Post AG, Case C-300/21, the Court of Justice held on May 4, 2023, that infringement of the GDPR alone does not establish entitlement to compensation under Article 82. Damage and a causal relationship are also required. The Court further held that compensation for non-material damage cannot be made conditional on exceeding a minimum threshold of seriousness.

The judgment concerned GDPR compensation rather than an EES overstay dispute. Its reasoning is relevant where an Article 82 claim is available, but it does not constitute a ruling on liability under Article 45 of the EES Regulation. The conditions governing an individual claim must be assessed under the applicable legal basis.

Correction and compensation remain separate remedies. A successful rectification request may establish that information required amendment, but it does not necessarily prove compensable loss. Equally, a damages claim does not replace the need to correct inaccurate records that may continue affecting subsequent border examinations.

6. Immigration Decisions Based on Incorrect EES Information

An EES overstay classification may influence the exercise of immigration powers by national authorities. The system identifies apparent noncompliance, but it does not independently impose a uniform fine, entry ban, or removal order whenever a record suggests that the permitted period has expired.

Immigration decisions must rest on the applicable legal rules. Refusal of entry is governed by the Schengen Borders Code, while return decisions and associated entry bans may fall within Directive 2008/115/EC and relevant national legislation. Other EU instruments may regulate particular categories of individuals or procedures.

The distinction becomes especially significant after an EES record has been corrected. An established departure may undermine the factual basis of an earlier decision, but that does not necessarily mean the decision disappears automatically. The individual may need to invoke the procedure governing the separate administrative act.

6.1 Refusal of entry and the right to challenge the decision

Article 14 of the Schengen Borders Code governs refusal of entry to third-country nationals who do not satisfy the applicable conditions, subject to the relevant exceptions and safeguards. It requires a substantiated decision stating the precise reasons for refusal through the prescribed procedure.

A traveler refused admission because the EES incorrectly suggests an earlier overstay may challenge that factual premise. Relevant evidence can include records establishing the departure, confirmation of previously authorized residence, or documents showing that the permitted duration was not exceeded.

Article 14(3) provides a right of appeal in accordance with national law. The existence of that right does not mean the appeal automatically suspends the refusal. The provision expressly states that lodging an appeal does not itself have suspensive effect.

Where an appeal concludes that the refusal was unfounded, Article 14(3) expressly entitles the affected third-country national to correction of the relevant EES data, a canceled entry stamp, or both, together with any other applicable cancellations or additions made by the Member State that refused entry. This entitlement operates without prejudice to compensation available under national law.

A successful appeal consequently has a specific consequence for the accuracy of border records. The correction is not left entirely to an informal administrative choice. Nevertheless, a data-correction request and an appeal against refusal of entry remain distinct procedures, even when both concern the same journey.

6.2 Return decisions, entry bans, and separate alerts

Directive 2008/115/EC establishes common standards concerning the return of illegally staying third-country nationals within its scope. Article 12 regulates the form and content of return decisions, including written reasons and information about remedies, subject to specified exceptions. Article 13 provides for review or appeal before a competent authority or body meeting the Directive's requirements.

Article 11 governs entry bans associated with return decisions. In certain circumstances an entry ban must accompany a return decision, while in others its imposition is discretionary. The duration and consequences remain subject to the Directive's requirements and the applicable individual assessment.

The EES Regulation does not establish a general rule that every apparent overstay automatically produces a particular fine or fixed-duration exclusion from the Schengen Area. National legislation and the specific legal basis for enforcement remain relevant. A warning about possible penalties is not equivalent to a formal decision imposing them.

In the November 2026 reporting concerning Jojo Moyes, the alleged warning included the possibility of a substantial fine and a two-year entry ban. Those figures relate to the reported circumstances of her border examination. They cannot be treated as uniform EU penalties or as sanctions conclusively shown to have been imposed in that case (Which?, 2026).

A separate Schengen Information System alert may require additional action. Regulation (EU) 2018/1861 governs relevant alerts concerning refusal of entry and stay, with its own legal conditions and data-protection arrangements. Correcting an EES record may provide important evidence, but another alert or administrative decision must be addressed through the procedure applicable to that measure.

The legal treatment of return, refusal of entry, and other border measures varies according to the person's status and the governing procedure. In particular, an ordinary dispute over the duration of a short stay must be distinguished from procedures involving international protection, which are subject to additional safeguards under the EU Pact on Migration and Asylum.

Procedural deadlines can be particularly significant. Where a formal refusal or return decision has already been issued, waiting for an EES correction may not protect the traveler against the expiry of a separate appeal period. The database error and the enforcement measure must be examined independently to determine which remedies are necessary.

7. Traveling While an EES Correction Remains Pending

An unresolved EES error can create practical difficulties for travelers who need to return to the Schengen Area before the competent authorities have completed their examination. Article 52 establishes a response procedure, but it does not guarantee immediate correction when a flight is approaching or another border crossing is imminent.

Submitting a correction request does not itself establish a right of admission. Nor does it automatically suspend an independent refusal of entry, return decision, or entry ban. The individual's position continues to depend on the applicable immigration rules and any legally effective measures already adopted.

A traveler awaiting correction may retain documentation demonstrating the disputed journey and the steps already taken. Boarding passes, transport confirmations, immigration records, evidence of residence outside the Schengen Area, and correspondence with the competent authority may be relevant during a subsequent examination. Their evidentiary value depends on what they establish and the circumstances in which they are presented.

The EU's authorized-stay verification service can assist travelers in assessing the information used for short-stay calculations. Its results must nevertheless be interpreted with care. The official EES service expressly warns that its remaining-stay calculation does not reflect time spent in the Schengen Area where the relevant stay began before April 10, 2026, even if that stay continued after that date.

This limitation is especially relevant to journeys spanning the transition to full EES operation. A favorable result does not independently guarantee that every condition for admission has been satisfied. Conversely, an unfavorable result may reflect incomplete or inaccurate information rather than an established breach of immigration law.

The continuing safeguards under Article 6 of Regulation 2025/1534 are also relevant where the pending correction concerns records created during progressive implementation. Authorities must account for the possible incompleteness of those historical registrations when using them for the purposes specified by the Regulation. The fact that full deployment began in April 2026 does not eliminate that obligation.

The administrative situation may become more difficult where someone discovers the discrepancy shortly before departure. The statutory 45-day response period may extend beyond the planned journey. The Regulation does not establish a general entitlement to immediate correction merely because travel arrangements have already been made.

Where an adverse immigration measure has been formally imposed, the individual must also consider the procedure governing that measure. Depending on national law and the circumstances, urgent judicial protection or interim relief may be available. Those possibilities require assessment under the applicable procedural rules rather than an assumption that every EES dispute qualifies for expedited review.

A pending correction request and credible travel evidence may help explain a discrepancy to border authorities. Their possession does not compel a favorable decision in every case. The strongest protection remains the correction of the inaccurate record and, where necessary, the separate challenge of any adverse administrative measure based on it.

Conclusion

EU law recognizes that electronic border records may be inaccurate or incomplete and establishes enforceable protections for affected individuals. A traveler incorrectly identified as an overstayer can request access to the relevant data, present credible evidence of lawful travel, seek rectification or completion, and challenge a refusal or failure to act. Articles 35, 52, and 54 of Regulation 2017/2226 provide particularly important safeguards, supported by the rebuttable presumption under Article 12 of the Schengen Borders Code.

The appropriate remedy depends on the nature of the problem. A missing departure requires correction of the travel history; an incorrect application of residence rules may require recognition of the individual's legal status; and a separate refusal of entry or return decision may require its own appeal. Compensation may also be available where the statutory requirements concerning unlawful conduct, damage, causation, and responsibility are satisfied.

The transitional safeguards remain particularly relevant to travelers whose records originated during the progressive introduction of the EES. Although full deployment began in April 2026, Regulation 2025/1534 continues to require authorities to account for the possible incompleteness of those historical records for the extended period prescribed by Article 8. The expiry of temporary operational derogations does not extinguish that protection.

The principal difficulty is often the interval between discovering an error and obtaining an effective correction. During that period, inaccurate information may remain relevant to subsequent border examinations, even where the traveler possesses substantial evidence that no unlawful overstay occurred. The rights established by EU legislation provide a legal basis for resolving the discrepancy, but their practical effectiveness depends on timely investigation, cooperation between national authorities, and access to meaningful remedies when administrative correction fails.

References

Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2020) Signed 24 January 2020, entered into force 1 February 2020. Official Journal of the European Union, L 29, 31 January, pp. 7–187. Available at: https://eur-lex.europa.eu/eli/treaty/withd_2020/sign/eng (Accessed: 10 November 2026).

Charter of Fundamental Rights of the European Union (2012) Official Journal of the European Union, C 326, 26 October, pp. 391–407. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT (Accessed: 10 November 2026).

Court of Justice of the European Union (2023) UI v Österreichische Post AG, Case C-300/21, judgment of 4 May 2023, ECLI:EU:C:2023:370. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0300 (Accessed: 10 November 2026).

Directive 2004/38/EC of the European Parliament and of the Council (2004) On the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 29 April 2004. Official Journal of the European Union, L 158, 30 April, pp. 77–123. Available at: https://eur-lex.europa.eu/eli/dir/2004/38/oj/eng (Accessed: 10 November 2026).

Directive 2008/115/EC of the European Parliament and of the Council (2008) On common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008. Official Journal of the European Union, L 348, 24 December, pp. 98–107. Available at: https://eur-lex.europa.eu/eli/dir/2008/115/oj/eng (Accessed: 10 November 2026).

European Commission (2026) Entry/Exit System (EES) [online]. Directorate-General for Migration and Home Affairs. Available at: https://home-affairs.ec.europa.eu/policies/schengen/smart-borders/entry-exit-system_en (Accessed: 10 November 2026).

European Commission (2026) The Entry/Exit System will become fully operational on 10 April 2026 [online]. 30 March. Available at: https://home-affairs.ec.europa.eu/news/entryexit-system-will-become-fully-operational-10-april-2026-2026-03-30_en (Accessed: 10 November 2026).

European Union (n.d.) Check how long you can stay [online]. Entry/Exit System. Available at: https://travel-europe.europa.eu/ees/rtl/check-how-long-you-can-stay.html (Accessed: 10 November 2026).

European Union (n.d.) Contact details for data protection matters [online]. Entry/Exit System. Available at: https://travel-europe.europa.eu/ees/ltr/contact-details-for-data-protection-matters.html (Accessed: 10 November 2026).

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Regulation (EU) 2016/399 of the European Parliament and of the Council (2016) On a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), 9 March 2016. Official Journal of the European Union, L 77, 23 March, pp. 1–52. Consolidated version of 12 October 2025. Available at: https://eur-lex.europa.eu/eli/reg/2016/399/2025-10-12/eng (Accessed: 10 November 2026).

Regulation (EU) 2016/679 of the European Parliament and of the Council (2016) On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 27 April 2016. Official Journal of the European Union, L 119, 4 May, pp. 1–88. Available at: https://eur-lex.europa.eu/eli/reg/2016/679/oj/eng (Accessed: 10 November 2026).

Regulation (EU) 2017/2226 of the European Parliament and of the Council (2017) Establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, 30 November 2017. Official Journal of the European Union, L 327, 9 December, pp. 20–82. Consolidated version of 12 June 2026. Available at: https://eur-lex.europa.eu/eli/reg/2017/2226/2026-06-12/eng (Accessed: 10 November 2026).

Regulation (EU) 2018/1861 of the European Parliament and of the Council (2018) On the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, 28 November 2018. Official Journal of the European Union, L 312, 7 December, pp. 14–55. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32018R1861 (Accessed: 10 November 2026).

Regulation (EU) 2025/1534 of the European Parliament and of the Council (2025) On temporary derogations from certain provisions of Regulations (EU) 2017/2226 and (EU) 2016/399 as regards the progressive start of operations of the Entry/Exit System, 18 July 2025. Official Journal of the European Union, L 2025/1534, 23 July. Available at: https://eur-lex.europa.eu/eli/reg/2025/1534/oj/eng (Accessed: 10 November 2026).

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Which? (2026) ‘Flawed EU border checks threaten author Jojo Moyes with two-year travel ban in EES error that could affect thousands of UK travellers’, Which?, 10 November [online]. Available at: https://www.which.co.uk/news/article/ees-exit-not-recorded-aVzy46a5dG3y (Accessed: 10 November 2026).