BF (data subject) – Court Ruling (Austria, 2026)

The data subject applied for international protection in Austria on 22 September 2022. The controller (Austrian migration authority) rejected the application on 19 October 2022, issued a return decision without an entry ban, and entered the data subject's return alert into the Schengen Information System (SIS) on 21 November 2022. On 17 July 2025, the data subject asked the controller to delete the SIS alert. The controller refused the request. On 31 August 2025, the data subject lodged a complaint with the Austrian DPA seeking deletion of the SIS alert. On 31 October 2025, the DPA rejected the complaint because the return decision remained valid, the data subject had not proved departure from the Schengen area. The data subject appealed to the court, arguing that they had voluntarily left Austria, were lawfully residing in Portugal, and were in the process of obtaining a residence permit there. First, the court held that the controller had lawfully processed the data under Article 6(1)(c) GDPR and Article 6(1)(e) GDPR because EU immigration law required Member States to enter return decisions into the SIS. Second, the court held that none of the deletion grounds under the immigration law appled, as the return decision had not been withdrawn or annulled, the data subject had not demonstrated departure from the territory of the Schengen Member States, and Portugal had neither granted a residence permit nor notified Austria of an intended or completed grant. Third, the court found that Article 17(3)(b) GDPR did not require a deletion as the processing remained necessary to comply with a legal obligation and to perform a task in the public interest. The court also noted that the processing of biometric data contained in the SIS alert was permitted under Article 9(2)(g) GDPR because Union law authorised the processing for an important public interest and included appropriate safeguards. The court therefore concluded that the controller had no obligation to erase the SIS alert, dismissed the appeal, and upheld the DPA's decision.