On Tuesday 7 June 2016, in the case of Ghanaian National, Selina Affum the European Court of Justice ("ECJ") ruled that foreigners could no longer be imprisoned as a result of illegal entry.
Ms Affum was apprehended in France on 22 March 2013, after being caught trying to travel into England using false documentation. France requested the Court to return Ms Affum to Belgium as she was using a false Belgian passport. The EU court, ruling on Affum's appeal against her detention, said the French request was contrary to the EU's laws on deporting migrants and in particular, Directive 2008/115/EC, the "Return Directive". The purpose of the Return Directive is to systematise the process for returning non-EU nationals, who have entered a country illegally, to their country of origin.
The ECJ found that the Directive, which applies to those countries within the Schengen area, prevents states from imprisoning non-EU nationals who have entered their territory without permission. The Schengen area is a group of European countries that have abolished the need for passports and any other type of border control at their mutual borders. It encompasses most EU States, except for Bulgaria, Croatia, Cyprus, Ireland, Romania and the United Kingdom.
The primary reason given for their ruling was that to imprison them would undermine the effectiveness of EU law i.e. it would ultimately slow down the return of illegal migrants. The Judges felt that implementing the Return Directive gives migrants a chance to go home voluntarily. They did however, grant four possible situations were imprisonment might be justified:
- The individual has committed a separate crime while in that country.
- The individual has continued to stay illegally after the process of deportation
- The individual has returned illegally after deportation
- Processing the illegality could be "compromised"
The ECJ stated that "if there is a risk of the removal being compromised", e.g. if it appears that the individual is likely to flee during the deportation process, it may be acceptable to detain them. The ECJ made it clear that this should not prevent States from placing such individuals in "administrative detention" while the legal status of their entry into the country was decided. Given the current migration crisis across, it will be interesting to see how this decision impacts Europe, and if there will be any ramifications.