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By Silvia Bartolini, PhD King’s College London, Academic Assistant at Université Saint Louis Bruxelles and Visiting Professor Université Catholique de Lille

Introduction

On 19 March 2019, the Court of Justice of the EU (hereinafter, the “CJEU”) delivered its long-awaited ruling in the Arib case, where it was asked once again to verify the compatibility of Article L. 621-2 of the Ceseda (the French code on foreigners and asylum as amended by the law of 31 December 2012), which penalizes with a term of imprisonment the irregular entry of third country nationals, with Directive 2008/115 (hereinafter, the “Return Directive”).

Article L. 621-2 of the Ceseda had already come under the spotlight in the Affum case. There the CJEU held that the imprisonment of third-country nationals on the sole basis of their irregular entry would only be possible when the return procedure has come to its formal end (Affum at [63]). In particular, the CJEU singled out two specific circumstances where Member States are allowed to impose such term of imprisonment. Firstly, when the return procedure has been applied and the third-country national continues to stay in the territory without justified reasons for non-return. Secondly, when the third-country national re-enters the territory of that Member State in breach of an entry ban (Affum at [54], [64]). 

Arib challenged the CJEU to contemplate another set of exceptional circumstances, namely the situation of an irregularly staying third country national apprehended in connection with the crossing of the internal borders of a Member State where border control has been temporarily reintroduced. In short: does this specific situation fall outside the scope of application of the Return Directive, consequently providing the Member State concerned with the possibility to impose a term of imprisonment on a third-country national for the irregular crossing of those borders?

The Return Directive, in principle, precludes Member States from imposing a sentence of imprisonment on third-country nationals because of their irregular status instead of using the return procedure, including detention under this directive. Extending the scope of exceptional circumstances under which Member States can impose a term of imprisonment to detain third-country nationals on the sole basis of their irregular stay would arguably call into question the coherence of the return system. In addition, it would challenge the level of fundamental rights protection that the CJEU has established in return proceedings throughout its interpretation most notably of Article 15 of the Return Directive.

It is hard to argue that the Return Directive just establishes a return mechanism aiming at removing irregularly staying third-country nationals in a timely fashion. The CJEU has set out clear procedural and substantial safeguards on the use of such a coercive measure in order to ensure the respect of EU fundamental rights and in particular the right to liberty pursuant to Article 6 of the Charter of fundamental rights of the EU. 

The background to the Arib case 

Following France’s temporary reintroduction of internal border controls pursuant to Article 25 of the Schengen Borders Code which provides Member States with the possibility to reintroduce border control at their internal borders due to serious threat to public policy, or internal security, Mr Arib, a Moroccan national, was checked on 15 June 2016 in the immediate vicinity of the French border with Spain, under the conditions set out in French criminal law. Suspected of having irregularly entered the French territory, Mr Arib was placed in police custody, pursuant to Article L.621-2 of the Ceseda. On the 16 of July, the Prefect issued against Mr Arib, an order to leave the territory and be placed in administrative detention. The judge responsible for matters relating to liberty and detention annulled Mr Arib’s placement in police custody and the subsequent procedure, including the administrative detention. 

This decision was further upheld by the Court of Appeal. Consequently, the Prefect lodged an appeal to the French Cassation Court (hereinafter, the “referring court”) arguing that it is compatible with EU law for the Member States that have exceptionally reintroduced internal border controls due to a serious threat to public policy or internal security, to partially disapply the Return Directive in favour of national law.

As the referring court was unsure as to whether the reintroduction of border control at the internal borders of a Member State entails the exclusion of an irregularly staying third country national, who is apprehended in the immediate vicinity of the internal borders, from the scope of the Return Directive, it stayed proceedings and asked the CJEU three questions pursuant to Article 267 TFEU.  

The first question concerns the interpretation of Article 32 of the Schengen Borders Code. This provision provides that where border control at the internal borders is reintroduced, the relevant provisions of Title II (relating to external borders) apply mutatis mutandis. The referring court wondered whether border controls reintroduced at an internal border, are to be considered as equivalent to border controls at the external borders of the EU, when that border is crossed by a third country national who has no right of entry in that territory. 

The second question relates to the interpretation of Article 2 (2) (a) of the Return Directive. This provision allows the Member States to apply simplified national return procedures at their external borders, in accordance with Article 4 (4) of that Directive, in  two instances. Firstly, where the third country national is subject to a refusal of entry across the external border pursuant Article 13 of the Schengen Borders Code. Secondly when a third country national is apprehended or intercepted by the competent authorities in connection with the irregular crossing of the external border and they have not subsequently obtained an authorisation or a right to stay in that Member State. In this regard, the referring court asked the CJEU whether Article 2 (2) (a) of the Return Directive also covers the situation of a third country national who has irregularly crossed a border at which controls have been reintroduced, thereby allowing the Member States to partially depart from the application of the Return Directive. 

Should that be the case, the referring court asked a third question relating to the interpretation of Article 4 (4) of the Return Directive. This provision requires Member States who have applied simplified national return procedures at their external borders pursuant to Article 2 (2) (a) of that Directive to observe certain minimum guarantees, which include the conditions of detention enshrined in Articles 16 and 17 of that Directive. The CJEU was asked whether L. 621-2 of the Ceseda ensures the respect of those guarantees. 

The CJEU’s judgment 

The CJEU reached the conclusion that the detention of an irregularly staying third country national who is apprehended in connection with the crossing of the internal borders of a Member State where internal border control has been reintroduced, is regulated by common standards and procedures laid down by the  Return Directive. It developed its reasoning in three steps.

  1. The CJEU considered whether Mr Arib was an irregularly staying third country national within the meaning of the Return Directive. It results from Article 3 (2) and Recital 5 of that Directive that third country nationals are to be considered irregularly staying within the territory of a Member State when, after having irregularly entered the territory, they are present on that territory without fulfilling the conditions of entry, stay or residence. The non-fulfilment of those conditions ipso facto renders their stay in that territory irregular, without their presence being subjected to a requirement of a minimum duration, or intention to remain on that territory (Arib at [37]). Therefore, Mr Arib, who was intercepted right after crossing the French border without fulfilling the conditions of entry, stay or residence, has to be considered as an irregularly staying third country national. Consequently, he falls, at least in principle, within the scope of the Return Directive (Arib at [38]).
  2. The CJEU examined whether Mr Arib’s situation could fall within the exceptions established in Affum. Although he had previously left France pursuant to a removal order no entry ban had been issued against him at that time (Arib at [41]). Therefore, the CJEU held that he could not be excluded from the scope of the Return Directive on the basis of those exceptions. 
  3. The CJEU considered whether Mr Arib could be excluded from the scope of the Return Directive on the basis of Article 2 (2) (a) of the Return Directive which allows Member States to partially disapply its provisions in two specific instances. The first is where the third country national is subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code. The second is where the third country national is apprehended or intercepted in connection with the irregular crossing of an external border of a Member State and has not subsequently obtained an authorisation or a right to stay in that Member State. 

The CJEU immediately ruled out the possibility that Mr Arib could fall within the scope of the first situation, since he was not subject to a refusal of entry into the French territory. Therefore, it focused its analysis on whether he could fall within the scope of the second instance. The CJEU reiterated that both situations relate exclusively to the crossing of an external border. The second situation in particular concerns third country nationals who have been apprehended or intercepted by the national competent authorities at the very time of the irregular crossing of the external border, or near that border after the crossing. It further recalled that Article 2 (2) (a) of the Return Directive cannot be interpreted as permitting Member States to exclude certain irregularly staying third country nationals from the scope of that Directive on the ground that they have irregularly crossed an internal border (Arib at [69]  at [77]).

Therefore, the CJEU noted that what is left to analyse is whether the reintroduction of border control at the internal borders of a Member State, in accordance with Article 25 of the Schengen Borders Code, is such as to cause Mr Arib’s situation to fall within Article 2 (2) (a) of the Return Directive (Arib at [48]). 

First, the CJEU pointed out that as a derogation from the scope of the Return Directive, Article 2 (2) (a) has to be interpreted restrictively. The terms of that Article are quite unambiguous, since they clearly refer to situations at the “external border” of a Member State, and there is no reference to the fact that border control reintroduced at an internal border equates to border control at the external border.This is the case even though, when the Return Directive was adopted, the possibility for the Member States to reintroduce border control at their internal borders on the ground of a serious threat to their public policy and internal security was already a possibility under EU law (Arib at [51]). 

Second, the CJEU looked at the intended purpose of Article 2 (2) (a) of the Return Directive: to allow the Member States to take advantage of the vicinity of the external borders of the EU and speed up the return of irregularly staying third country nationals, via simplified national rules (Arib at [55]). Through this prism, the reintroduction of border control at the internal borders does not entail that irregular staying third country nationals would be more swiftly or easily removed from that territory. (Arib at [52] – [56]).  Therefore, “there is no need to treat differently the situation of an [irregularly] staying third country national, apprehended in the immediate vicinity of an internal border, depending on whether or not border control has been reintroduced at that border”(Arib at [59]).

The CJEU continued to point out that the need to interpret Article 2 (2) (a) of the Return Directive restrictively also arises from a systematic reading of the Schengen Borders Code. Under Article 2 of the Code, the concepts of “internal” and “external” borders are mutually exclusive. Moreover, Article 32 of the Schengen Borders Code merely provides that – in the case of reintroduction of border control at the internal borders of a Member State, only the relevant provisions of that Code relating to external borders shall apply mutatis mutandis, but it does not provide that Article 2 (2) (a) of the Return Directive is to be applied. Therefore, it results from the very wording of the Schengen Borders Code that an internal border at which border control has been reintroduced, pursuant to Article 25 of that Code, cannot be equated to an external border (Arib at [62]). 

The CJEU further noted that Article 5 (3) of the Schengen Borders Code, which allows the Member States to introduce effective, proportionate and dissuasive penalties for the unauthorized crossing of an external border, is not in any way intended to derogate from the common standards and procedures set out in the Return Directive. It is Article 13 (1) of that Code that explains the relationship between surveillance and the implementation of the return procedures. Member States may introduce penalties on the basis of Article 5 (3) of the Schengen Borders Code, but this “cannot lead to a modification of the obligations imposed” on them by the Return Directive (Arib at [63] – [65]).

In conclusion, the situation of an irregularly staying third country nationals who is apprehended in the immediate vicinity of the internal borders of a Member State where internal border control has been reintroduced, is subject to the common standards and procedures laid down by the Return Directive. This however does not preclude the Member States from imposing a sentence of imprisonment on irregularly staying third country nationals for the commission of offences other than those stemming from the mere fact of their irregular entry/stay. 

Concluding thoughts 

With its judgment on Arib, the CJEU reiterates that Member States can impose a term of imprisonment on a third-country national solely on the basis of his/her their irregular stay only when the return procedure enshrined in the Return Directive has proved to be ineffective. This means when the return procedure has been applied and additionally: either, the third country national concerned continues to stay in the territory of that Member State without a justified ground; or the person concerned has re-entered the territory of that Member State in breach of an entry ban (Affum at [54] – [64]). 

The imprisonment of a third country national on the sole basis of his/her irregular stay, when the return procedure has not yet commenced or has not even been contemplated by the Member State – as in the case at stake – would de facto hinder the effectiveness of the Return Directive. The CJEU therefore confirms that exceptions to the general principle which precludes Member States from imposing a term of imprisonment on third country nationals solely on the basis of their irregular status should be kept to the minimum and by doing that, it safeguarded the coherence of the return system. 

Moreover, by deciding that Member States cannot depart from their obligations arising from Article 15 of the Return Directive where border control is temporarily reintroduced at their internal borders, the CJEU ensures the respect of the principles of equal treatment and legal certainty. The situation of an irregularly staying third-country national apprehended in the immediate vicinity of the internal borders of a Member State where border control has been reintroduced (or in connection with the crossing of that borders) should be treated in the same manner as that of an irregularly staying third country national apprehended in times where border control has not been reintroduced at those borders. This entails that the use of detention is submitted to the same procedural and substantive safeguards. In particular, 

  • Member States are only allowed to use detention when the return process is pending as it is not punitive in nature (Celaj at [73]); 
  • Member States can only use this coercive measure as ultima ratio and in full respect of the principles of proportionality and subsidiarity (Affum at [62]). Therefore, detention of irregularly staying third country nationals has to be necessary, in accordance with the objective pursued by that Directive. 
  • Member States pursuant to Article 15 (1) of the Return Directive can only detain a third country national “in order to prepare the return and/or carry out the removal process, in particular when: there is a risk of absconding or the third-country national concerned avoids or hampers the preparation of return or the removal process”. It is noteworthy to remind that the CJEU has adopted a strict interpretation of that provision following which it is only where the enforcement of the return decision risks to be compromised by the conduct of the person concerned that detention can be justified (El Dridi at [39]). That is why a third country national who has no identity documents does not pose this basis alone a risk of absconding that would justify detention (Mahdi at [73] – [74]). There has to be a serious reason, arising from an individual examination of the behaviour of the person concerned (Mahdi at [70]), behind the belief that they would attempt to hinder or circumvent the implementation of the return order.

Finally, the CJEU’s decision has a direct and clear impact on the legality of Mr Arib’s detention and of anyone who would find themselves in the same position: a third country national who is detained only on the basis of having irregularly crossed an internal border where border controls have temporarily been reintroduced would have to be immediately released.  

In its relatively straightforward judgment, the CJEU  ensured that recourse to Article 25 of the Schengen Borders Code which in recent years has substantially increased (since 2015, Member States have notified the temporary reintroduction of border control at internal borders pursuant to this article 74 times) does not entail any discontinuance in the application of the Return Directive. The CJEU therefore safeguarded the effectiveness of that Directive and the coherence of a system that sets out specific procedural and substantive safeguards for the use of detention throughout the removal process.