Brussels, 07/06/2016 (Agence Europe) - Third-country nationals cannot be imprisoned simply because they have illegally crossed an internal border of the Schengen zone, the Court of Justice of the EU stated in a judgement returned on Tuesday 7 June (case C-47/15).
The Court of Justice, looking in this case at French law in light of the Directive on returns of third-country nationals residing illegally in the EU (2008/115/EC), followed the conclusions of Advocate General Maciej Szpunar, which were presented in February (see EUROPE 11481). Under this judgement, therefore, France will have to change its laws, which currently allow migrants to be imprisoned for a year for illegally entering French territory.
The basis used by the Court was its own case-law, which specified that EU law opposes any rules in the member states punishing illegal residency by imprisoning foreign nationals whose return procedure has not yet been completed. In this case, the Court simply extended the notion of “illegal residency” to the case of an illegal crossing of an internal board of the Schengen zone.
The fact that a migrant is under a readmission procedure in the member state from which he or she departed does not invalidate this principle, the Court stressed. Imprisoning a non-EU country national resident illegally would, indeed, delay the triggering of this procedure and the actual removal of the person, which would therefore hinder the effectiveness of the directive.
The judgement in no way alters the fact that under certain circumstances, the national authorities may place a migrant in detention or apply the exemptions provided for by the directive in the event of the illegal crossing of the “external border” of a member state.
Within the Schengen zone, the national authorities may do so if the migrant has previously been the subject of a readmission procedure, but continued to reside illegally on the territory of the member state. Administrative detention is also possible to determine whether or not the person is residing illegally. Lastly, a prison sentence is possible if the migrant commits crimes other than simply residing illegally, which also applies if the readmission procedure has not yet been completed. (Original version in French by Jan Kordys)