The European Court of Justice ruled that a national of a non-EU country who has not yet been subject to the return procedure cannot being imprisoned solely because he or she has entered the territory of a member state illegally across an internal border of the Schengen area. This is prevented by the Return Directive of the EU.
The EU Court of Justice had to give a verdict in the case of Sélina Affum, an illegal refugee from Ghana vs. the Préfet of Pas de Calais and the Procureur général of the Cour d’appel of Douai, France.
France was wrong to detain a Ghanaian illegal refugee after she was caught trying to reach the UK using a false passport, decided today the Court of Justice of the European Union. Instead, she should have been released – even if this could have given her the chance to vanish.
The Return Directive prevents a national of a non-EU country who has not yet been subject to the return procedure being imprisoned solely because he or she has entered the territory of a member state illegally across an internal border of the Schengen area, was the verdict of the Court. The Court said that this is also the case where a person who is merely in transit on the territory of a 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.
In today’s judgment the Court of Justice made reference to an older verdict, according to which the Return Directive precludes any legislation of a Member State which lays down a 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 has not yet been completed.
…and this applies to all EU member states, not only France.