Brussels, 02/02/2016 (Agence Europe) - A foreign national who was not stopped when illegally crossing an external border of the Schengen area cannot be imprisoned solely on the basis of his illegal entry into the territory of a member state.
This is the conclusion presented by Advocate General Maciej Szpunar to the Court of Justice of the EU (case C-47/15) on Tuesday 2 February. Szpunar analysed the provision of French law which states that third-country nationals may be sentenced to a year's imprisonment if they illegally entered French territory in the light of Directive 2008/115/EEC on returns of third-country nationals resident illegally.
The case concerns a Ghanaian national who was stopped by the French police at the point of entry to the Channel Tunnel, trying to reach the United Kingdom from Belgium. She did not have her own identification documents and was detained on the grounds of illegal entry into French territory before being placed in detention pending her readmission to Belgium.
In principle, the European directive does not oppose the imprisonment of the migrant and the case-law of the Court has recently been added to by judgments specifying the circumstances under which this can be done (see EUROPE 11401), and laying down criteria to allow illegally resident foreigners to be expelled immediately (see EUROPE 11333).
Advocate General Szpunar finds that there are two situations which allow illegal migrants to be imprisoned. Member states may do so if the returns procedure laid down by the directive has been applied and the third-country national continues to be illegally resident on the territory of the member state without justified grounds, or when the return procedure has been applied and the third-country national re-enters the territory of the member state in breach of an entry ban.
In the present case, the Advocate General found that the directive did apply, as the Ghanaian national was already in the Schengen area, that a readmission procedure (to Belgium) had been applied to her and that she was illegally resident. However, the conditions had not been met for her to be imprisoned, as she was not the subject of a return procedure and had not re-entered French territory in violation of an entry ban. The fact that she was illegally resident was not in itself sufficient grounds for her imprisonment, he concluded. (Original version in French by Jan Kordys)