CJEU - Case C‑47/15, Sélina Affum v Préfet du Pas-de-Calais, Procureur général de la cour d’appel de Douai

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Country of Applicant: 
Ghana
Date of Decision: 
07-06-2016
Citation: 
Case C‑47/15
Court Name: 
Court of Justice of the European Union
Keywords: 
Relevant Legislative Provisions: 
Headnote: 
Imprisonment of a Third Country National on account of illegal entry to a Member State across an internal border of the Schengen area is not permitted under the Return Directive where said individual has not yet been subject to a return procedure.
 
This  applies equally to a Third Country National who is merely in transit on the territory of the Member State, is intercepted when leaving the Schengen area and is the subject of a procedure for readmission into the Member State from which he or she has come.
 
Facts: 

Ms Affum, a Ghanaian national, 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. Ms Affum appealed on a point of law against this order to the Court of Cassation, who then decided to stay proceedings and refer the following set of questions to the Court of Justice of the European Union:

1.      Is Article 3(2) of Directive 2008/115 to be interpreted as meaning that a third-country national is staying illegally on the territory of a Member State and thus falls within the scope of that directive, as defined in Article 2(1) thereof, where that foreign national is merely in transit as a passenger on a bus travelling on the territory of that Member State from another Member State forming part of the Schengen area and bound for a different Member State?

2.       Is Article 6(3) of Directive 2008/115 to be interpreted as meaning that that directive does not preclude national legislation under which a third-country national who has entered the territory of a Member State illegally is liable to a sentence of imprisonment where the foreign national in question may be taken back by another Member State pursuant to an agreement or an arrangement concluded with that State prior to the entry into force of the directive?

3.       Depending on the answer given to the previous question, is Directive 2008/115 to be interpreted as precluding national legislation under which a third-country national who has entered the territory of a Member State illegally is liable to a sentence of imprisonment, under the same conditions as those laid down by the Court of Justice in the judgment [of 6 December 2011] in Achughbabian [(C‑329/11, EU:C:2011:807)] so far as concerns illegal stay, which are contingent on the person concerned not having been previously subject to the coercive measures referred to in Article 8 of the directive and the duration of that person’s detention?’

Decision & Reasoning: 

In answer to the first question the CJEU examines the definition of illegal stay as referred to in Article 2(1) and concludes, in line with Article 3(2), that presence on the territory without fulfilling conditions for entry, stay or residence is sufficient to fall within the scope of the return Directive. Presence is not subject to any form of duration or intention, thus transit through the territory of a Member State falls under the scope of the Directive.

The Court examines questions 2 and 3 together which principally ask whether French legislation allowing for the imprisonment of a TCN who has entered the territory of a Member State illegally is compatible with the Return Directive.

As an initial port of call the Court prays aid to Achughbabian in which it was concluded that Union law opposes national legislation which permits the imprisonment of a TCN staying illegally who has not been subject to the coercive measures referred to in the Directive and has not, in the event of being placed in detention with a view to the application of the removal procedure, reached the expiry of the maximum duration of that detention. Nonetheless the Return Directive does not prevent the imposition of administrative detention to assess whether the individual’s stay is legal where this examination is done with diligence and without delay. Likewise the Directive allows national legislation which permits imprisonment where the return procedure has been applied and the individual has no justified ground for non-return.

Assessing the conceptual distinction between illegal stay and illegal entry the Court finds the two to be closely linked in that the former naturally follows on from the latter. Given that entry of an individual necessarily leads to them being regarded as staying the individual falls under the Directive’s scope. They must, therefore, be subject to a return procedure which is characterised by a graduated set of strictly regulated procedures. Therefore where a return procedure has not been completed a Member State may not imprison a TCN merely on account of illegal entry, resulting in illegal stay, as this is liable to hinder the effectiveness of the Directive.

With regards to the French government’s submissions that by virtue of Article 2(2) of the RD certain TCNs can be excluded from the scope of the Directive on account of a refusal of entry in accordance with Article 13 Schengen Borders Code or irregular entry of an external border, Article 4(3) of the SBC. Whilst the Directive may not apply in these two situations the Court finds, specifically with regards to the second scenario, that this exclusion only applies when the individual enters a Member State’s external border and not an internal one and is apprehended or intercepted at the time of crossing the border or near that border after it has been crossed. Moreover, such exceptions are still regulated by Article 4(4) which requires that simplified national return procedures still meet certain minimum guarantees.  The Court, therefore, finds that Ms Affum is not excluded from the scope of the Directive given that she was intercepted when trying to leave the French territory and Schengen area and not when trying to enter France.

As for the French government’s use of Article 6(3) of the Return Directive to exclude an illegally staying TCN by virtue of the bilateral arrangement with Belgium the Court finds that such an interpretation would run counter to the wording of Article 6 as well as the purpose of the RD. A transferring Member State to another State who will undertake the removal is still bound by the framework of the Directive. Indeed, a transfer to a second MS by the first must be done with diligence and speed and any enforcement of imprisonment would only serve to delay the actual removal from the second Member State.

Lastly, with regards to France’s contention that Article 4(3) of the SBC allows for the imposition of penalties for the unauthorised crossing of external borders at places other than border crossing points or at times others than fixed ones, the Court finds that imprisonment is not obligatory, instead penalties are subject to Member States’ choices but they must be effective, proportionate and dissuasive. Moreover, penalties must comply with the RD and Article 4(3) is not intended to derogate form the common standards established by the Directive. Therefore, France may not invoke obligations imposed on Member States by the SBC to justify a failure to comply with the RD.

Outcome: 

1.      Article 2(1) and Article 3(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that a third-country national is staying illegally on the territory of a Member State and therefore falls within the scope of that directive when, without fulfilling the conditions for entry, stay or residence, he passes in transit through that Member State as a passenger on a bus from another Member State forming part of the Schengen area and bound for a third Member State outside that area.

2.      Directive 2008/115 must be interpreted as precluding legislation of a Member State which permits a third country national in respect of whom the return procedure established by that directive has not yet been completed to be imprisoned merely on account of illegal entry across an internal border, resulting in an illegal stay.

That interpretation also applies where the national concerned may be taken back by another Member State pursuant to an agreement or arrangement within the meaning of Article 6(3) of the directive.

Observations/Comments: 

The CJEU’s finding was preceded by Advocate General Szpunar’s Opinion in which the AG 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 similar to those raised by the Court, namely the geographical crossing of a Member State and the fact that Ms Affum was exiting the Schengen area.

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.

Case Law Cited: 

CJEU - Case C‑290/14, Skerdjan Celaj

Italy - Court of Cassation, No. 24544, 2011
Attachment(s): 
Other sources cited: 

Article 1, 2(1)(2), 4,5,7, 13, 20, 39(1) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1) 

Article 12 Schengen Borders Code, amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1).

 

Authentic Language: 
French
Country of preliminary reference: 
France
National / Other Legislative Provisions: 
France - Article L. 621-2 of the Code on the Entry and Stay of Foreign Nationals and the Right of Asylum (code de l’entrée et du séjour des étrangers et du droit d’asile; ‘Ceseda’)
France - Code of Criminal Procedure - Article 53
France - Code of Criminal Procedure - Article 62(2)