The ‘Returns’ Directive (2008/115) applies to any third-country national who has entered the territory of a Member State of the European Union illegally even before crossing a border crossing point where checks are temporarily re-established under the Schengen Borders Code, ruled the Court of Justice of the EU in a judgment delivered on Thursday 21 September (Case C-143/22).
In France, a number of associations, including ‘Avocats pour la défense des droits des étrangers’ (Lawyers for the defence of foreign nationals’ rights), claim that the French Council of State’s Ceseda order, which authorises the French authorities to refuse entry into French territory to third-country nationals at the internal borders of the Schengen area where controls have been temporarily re-established because of a serious threat to public order or France’s internal security, is contrary to the ‘Returns’ Directive.
Referred to for a preliminary ruling, the Court held that, in such a situation, a decision to refuse entry may be adopted on the basis of the Schengen Borders Code. However, in order to remove the person concerned, the common standards and procedures of the ‘Returns’ Directive must be respected, a condition which may deprive the adoption of such a decision to refuse entry of much of its usefulness, it added.
The Court clarified that the directive in question allows Member States, on an exceptional basis, to exclude illegally staying third-country nationals from the scope of the directive. This is the case when these nationals are refused entry at an EU external border.
Finally, the Court points out that Member States may detain a third-country national pending his or her removal where that person poses a threat to public order. And if an offence other than illegal entry is committed, an illegally staying third-country national may be arrested, placed in police custody or even sentenced to prison.
To see the Court’s judgment: https://aeur.eu/f/8oy (Original version in French by Mathieu Bion)