European Court of Justice rules against imprisonment for migrants illegally crossing Schengen area borders

In a judgment that attracted considerable media attention, the European Court of Justice ruled yesterday that EU law prevents a national of a non-EU country being imprisoned solely because he or she illegally crossed an internal border of the Schengen area.

EIN members can read the judgment in Affum v Préfet du Pas de Calais and Procureur général de la Cour d'appel de Douai here. The Court's press release with a full summary of the case is below.

The Court ruled that the EU Return Directive prevents arrest and imprisonment unless non-EU migrants are suspected of having committed a crime or already have been subject to deportation procedures.

The Guardian reported on the judgment here, the Daily Telegraph here, BBC News here, to name but a few.

According to BBC News, the judgment was welcomed by the International Organisation of Migration (IOM), which said it was "in line with international standards and interpretation on when detention is legitimate - when it is a measure which has a legitimate purpose and is proportionate … detention is too frequently used as an administrative measure. The ruling is important in that it sends a clear signal that the use of detention should be used less and, as stated, as a last resort."

The Daily Mail reported that justice minister Dominic Raab, who favours voting to leave the EU, said the ruling "increases the risk that illegal immigrants will be able to enter the UK, because it weakens the ability of other EU governments to put in place proper checks."

Labour MP Emma Reynolds, a Remain supporter, said, however: "The Leave campaign is misleading people yet again. They know perfectly well that this court ruling does not apply to the UK because we are exempt from this directive. Leaving the EU will make it harder to work with other countries to keep our border secure. That's why law enforcement professionals say we will be safer in Europe than out on our own."

Germany's Deutsche Welle noted that, importantly, the Court found that EU directives do not prevent non-EU nationals from being placed in "administrative detention" while authorities determine whether or not their stay is illegal.

The Court's press release follows below:

___________________________

Court of Justice of the European Union
PRESS RELEASE No 58/16
Luxembourg, 7 June 2016

Judgment in Case C-47/15
Sélina Affum v Préfet du Pas de Calais and Procureur général de la Cour d'appel de Douai

The Return Directive prevents a national of a non-EU country who has not yet been subject to the return procedure being imprisoned solely because he or she has entered the territory of a Member State illegally across an internal border of the Schengen area

That is also the case where that national, who is merely in transit on the territory of the Member State concerned, is intercepted when leaving the Schengen area and is the subject of a procedure for readmission into the Member State from which he or she has come

The directive for returning illegally staying third-country nationals ('the Return Directive') [1] establishes common standards and procedures applicable in Member States for removing illegally staying nationals of non-EU countries from their territory.

The directive provides that a return decision is to be adopted in respect of any illegally staying national of a non-EU country. That decision triggers, in principle, a period for voluntary return, followed, if necessary, by forced removal measures.

If voluntary departure does not take place, the directive requires the Member States to carry out forced removal using the least coercive measures possible. It is only if there is a risk of the removal being compromised that the Member State may keep the person concerned in detention, the duration of which may not in any case exceed 18 months.

French law provides that nationals of non-EU countries are liable to a sentence of one year's imprisonment if they have entered French territory illegally. In addition, in France persons reasonably suspected on one or more grounds of having committed or attempted to commit a crime or other offence punishable by imprisonment may be deprived temporarily of their liberty in order to be held at the disposal of investigators ('police custody').

On 22 March 2013, Ms Affum, a Ghanaian national, was intercepted by the French police at the point of entry to the Channel Tunnel when she was on a bus from Ghent (Belgium) to London (UK). After presenting a Belgian passport with the name and photograph of another person, and lacking any other identity or travel document in her name, she was initially placed in police custody on the ground of illegal entry into French territory. The French authorities then requested Belgium to readmit her into its territory.

As Ms Affum disputes that it was lawful to place her in police custody, the Cour de cassation (French Court of Cassation) has asked the Court of Justice whether, in the light of the Return Directive, illegal entry of a national of a non-EU country into national territory may be punished by a sentence of imprisonment.

In today's judgment, the Court recalls first of all its decision in Achughbabian, [2] case-law to which the Cour de cassation's request for a preliminary ruling specifically relates. According to that case-law, the Return Directive precludes any legislation of a Member State which lays down a sentence of imprisonment for an illegal stay of a national of a non-EU country in respect of whom the return procedure established by that directive has not yet been completed. According to that case-law, the directive does, however, permit such nationals to be imprisoned where they have previously been subject to that procedure and continue to stay illegally on the territory of the Member State with no justified ground. [3] Nor does the directive preclude nationals of a non-EU country being placed in administrative detention with a view to determining whether or not their stay is legal.

The Court finds next that illegal entry is one of the factual circumstances that may result in an illegal stay within the meaning of the Return Directive. The directive is therefore applicable to nationals of a non-EU country who, like Ms Affum, have entered the territory of a Member State illegally and who, on that basis, are regarded as staying there illegally. Consequently, such nationals must be subject to the return procedure laid down by the directive for the purpose of their removal, as long as their stay has not, as the case may be, been regularised.

The Court points out, furthermore, that the exceptions provided for by the directive [4] do not permit the Member States to exclude nationals such as Ms Affum from the directive's scope on the ground that they have illegally crossed an internal border of the Schengen area (in this instance, the Franco-Belgian border) or have been arrested when trying to leave that area (the United Kingdom does not form part of the Schengen area).

Moreover, the fact that Ms Affum was the subject of a procedure for readmission into the Member State from which she came (Belgium) does not render the directive inapplicable to her case. Readmission simply has the effect of transferring the obligation to apply the return procedure to the Member State responsible for taking the national back (in this instance, Belgium). To imprison an illegally staying national of a non-EU country would delay the triggering of the return procedure and that national's actual removal and would thereby undermine the directive's effectiveness.

Finally, the fact that Ms Affum is merely in transit does not prevent the directive from applying: a national of a non-EU country who is on a bus without fulfilling the entry conditions is clearly present on the territory of the Member State concerned (in this instance, France) and is thus staying there illegally within the meaning of the directive, as the directive does not lay down a condition requiring presence of a minimum duration or an intention to remain on that territory.

As the directive is applicable to Ms Affum, she could not be imprisoned, solely because she had entered French territory illegally, before being subject to the return procedure. The French authorities have not even begun that procedure.

The Court thus holds that, for the same reasons as those set out in its decision in Achughbabian, the Member States cannot permit nationals of non-EU countries in respect of whom the return procedure established by the directive has not yet been completed to be imprisoned merely on account of illegal entry, resulting in an illegal stay, as such imprisonment is liable to thwart the application of that procedure and delay return, and thereby to undermine the directive's effectiveness. The Court makes clear that this does not, however, prevent the Member States from being able to impose a sentence of imprisonment to punish the commission of offences other than those stemming from the mere fact of illegal entry, including in situations where the return procedure has not yet been completed.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court's decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice.

The full text of the judgment is published on the CURIA website on the day of delivery.

Press contact: Holly Gallagher (+352) 4303 3355

[4] Under the directive, Member States may decide not to apply the directive to nationals of non-EU countries who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.