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

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.