On Tuesday 19 March, the judges of the Court of Justice of the European Union (ECJ) ruled in case C-444/17 that an internal border of a Member State over which checks have been restored cannot be treated as an external border under Directive 2008/115/EC (Return Directive).
A Moroccan citizen was checked in France near the Franco-Spanish land border while travelling on a coach from Morocco. Having previously been the subject of a removal order from French territory and suspected of having entered France illegally, he was subsequently taken into police custody and ordered to leave French territory. The French courts then ruled that police custody was not allowed.
The checking of the Moroccan national took place at a time during which there was a temporary reintroduction of checks at French borders in accordance with the Schengen Borders Code (Regulation 2016/399); France having declared a state of emergency after the terrorist attacks of 2015.
In this case, the Court of Cassation firstly noted that the Return Directive gives a Member State the freedom to not apply the return procedure provided for in the text in respect of third-country nationals when they are intercepted at a time at which an external border is not frequently crossed, and if they have not subsequently been authorised to reside in that State. It referred the matter to the ECJ for a preliminary ruling in order to determine whether an internal border over which a check has been reintroduced might be regarded as an external border in this context.
Advocate-General Maciej Szpunar replied in the negative to this question in his Opinion of 17 October 2018 (see EUROPE 12119/22).
The European judges have noted, first of all, that the Moroccan national was not refused entry to France, but was checked in the immediate vicinity of an internal border.
They then recalled the case law of the ECJ, according to which Member States may not exempt those third-country nationals who have remained illegally from the scope of the Return Directive in respect of illegal entry through an internal border. They are of the opinion that the reintroduction of checks by Member States cannot justify a derogation from this case law.
The ECJ also considers that the Schengen Borders Code precludes an internal border over which checks have been reintroduced from being treated as an external border. It therefore follows that the exception to the application of the return procedure provided for in the Return Directive cannot apply to the situation of a third-country national who has been arrested close to an internal border. (Original version in French by Lucas Tripoteau)