The Court of Justice of the European Union (CJEU) has found Member States cannot permit nationals of non-EU countries, where the procedures for their removal have not been completed, to be imprisoned merely on the account of illegal entry, resulting in an illegal stay.
By way of background Ms Affum a Ghanian national was arrested by French police at the point of entry to the Channel tunnel when she was on a bus from Ghent (Belgium) to London (UK). Ms Affum presented a passport with the name and photo of another person and without any other identification was placed in police custody on the ground of illegal entry into French territory. Ms Affum challenged the lawfulness of that detention.
The CJEU was asked whether in 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. French law provides for a term not exceeding one year. The Return Directive establishes common standards and procedures applicable in Member States for removing illegally staying nationals of non-EU countries from their territory.
Referring to its earlier case law on this point the CJEU reaffirmed its position that the Return Directive precludes any legislation of a Member State which lays down 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 had not been completed. However, the directive does not preclude the imprisonment of such nationals where they had previously been subjected to the procedure and continued to stay illegally. Furthermore, the directive does not 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 CJEU found that the directive did apply to Ms Affum and that she could not be imprisoned, solely because she had entered French territory illegally, before being subject to the return procedure. 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 effective. The CJEU noted that the French authorities had not even begun the procedure in the current case.
For a copy of the press release of the decision please click here.
For further commentary on the decision please click here.