CJEU: Advocate General opinion, Case C-47/15 Affum v Prefet du Pas de Calais

Tuesday, February 2, 2016
Case C-47/15 relates to a national of Ghana, Ms Affum, who was intercepted by French police on 22 March 2013 at Coquelles, the entrance of the Channel tunnel, while transiting through French territory on a bus from Belgium to the UK. She had no identity documents except a Belgian passport with the name and photo of another person. She was detained for illegal entry pursuant to Article L. 621-2 of the Code of Entry and Residence of Foreigners and Asylum Law, but the prosecutor decided to take no further criminal proceedings against her. The Prefect of Pas-de-Calais made an Order deciding to transfer her to Belgium in accordance with a readmission agreement between France and the Benelux countries. He also ordered her administrative detention for a period of five days pending removal, which was later extended by a judge of the High Court of Lille. Upon appeal, the Court of Cassation submitted a reference for a preliminary ruling to the CJEU on the compatibility of the Return Directive with national law allowing the imposition of term of imprisonment on a third country national on the basis of illegal entry and stay.

Advocate General Szpunar found that the Return Directive applied to Ms Affum, as a person who illegally crossed the border with no right to reside in the territory of the Member State concerned. He rejected the arguments of the French authorities that it was inapplicable in relation to rules on the crossing of external borders and the movement of third country nationals between Member States, for a number of reasons. He found that the limitation from scope of the Directive in Article 2(2)a) applied only where a third country national was stopped attempting to enter the Schengen area at an external border, rather than as in this case, where Ms Affum was caught attempting to leave the Schengen area. In addition, the fact that Ms Affum was merely transiting through France did not mean that she was not staying illegally within the meaning of  Article 3(2) and Article 2(1). Article 6(3) of the Return Directive expressly provided for third country nationals to be taken back by another Member State under bilateral agreements or arrangements existing prior to the entry of force of the Directive. Thus where this option was used, the situation would still fall within the scope of the Directive, and all other relevant provisions continued to apply.

The AG also found that on a literal reading of Article 4(3) of the Schengen Borders Code, which mandates the imposition of penalties for “the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours", it was inapplicable to Ms Affum.

Having examined the CJEU case law the Advocate General considered that there were two situations in which the Directive permitted national legislation which punished illegal stay on a third country national with a term of imprisonment: (1) where the return procedure was being applied but the person continues to stay illegally without justification (Achughbabian) and (2) where a person who was returned in accordance with the Directive re-enters the territory of that Member State in breach of an entry ban  (Celaj). None of these situations was applicable to Ms Affum and therefore a third country national in her position could not be imprisoned solely on the basis of illegal stay in the territory of a Member State.

Based on an unofficial ELENA translation. A press release issued by the CJEU in English is available here.  

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