CJEU: Judgment C-47/15 Affum

Tuesday, June 7, 2016

On Tuesday 7 June, the Court of Justice of the European Union ruled on case C-47/15relating 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, whilst 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 a term of imprisonment of a third country national on the basis of illegal entry and stay. The Court decided to follow the opinion of Advocate General Szpunar.

The Court decided, in line with its previous judgment in Achughbabian, that Article 2(1) and Article 3(2) of the Return Directive render the Directive applicable to nationals of a non-EU country who, like Ms Affum, have entered the territory of a Member State illegally and who are regarded as staying there illegally. A third-country national is thus not excluded from the scope of the Return Directive merely because she was in a situation of ‘mere transit’ and only briefly present on the territory of the Member State. Indeed, no duration conditions are attached to the term “staying”.

The Court reiterated its findings from Achughbabian and stated that the Return Directive precludes any legislation of a Member State which lays down a sentence of imprisonment for an illegal stay, but that it does not preclude legislation permitting the imprisonment of a third-country national to whom the return procedure has been applied and who is staying on the territory without a justified ground for non-return. The Court repeated that imprisonment merely on the basis of illegal stay would thwart the application of the return procedure and delay return, thereby undermining the effectiveness of the Return Directive. The Court clarified that this interpretation applies despite the fact that Ms. Affum was taken back by another Member State pursuant to an agreement within the meaning of Article 6(3) of the Return Directive. The Court stated that the transfer to the first Member State in order to bring the individual’s illegal stay to an end must be done speedily as to not further delay the return procedure.

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