An illegal migrant entered irregularly in the EU may be imprisoned only because he is undocumented, if he has not been subjected to a return procedure, reaffirmed Tuesday, June 7, 2016 the Court of justice of the European Union.This decision is in line with a judgment delivered in 2011, in which the European Court already stated that European law was opposed “to any legislation of a Member State” punishing “illegal residence by imprisonment” .
The European justice Court was this time asked to rule by the French Supreme Court, not on the “illegal stay”, but on “illegal entry” of a Ghanaian citizen, Selina Affum intercepted in 2013 by French police at the entrance to the tunnel which separates France from Britain, at board of a bus from Belgium without valid identity documents.She had been placed in custody for “illegal entry into the French territory,”
Since a law of 31 December 2012, which followed the 2011 judgment of the European Court of Justice, French law provides that “illegal entry” of foreigners on the territory are punishable by a year of prison. This is the reason why Ms. Affum has been placed in custody.
Citing jurisprudence, the Court considers that EU law which applies to “illegal residence” also applies in case of “illegal entry”.
A foreigner “who, following his illegal entry into the territory of a Member State is present on its territory (…) is thus illegal residents,” the Court notes.
According to an EU directive, return proceedings should be opened against all illegal migrants: the first option of voluntary departure and, if necessary, measures of forced removal.
Imprisonment is not then be possible, if the procedure were carried to completion and the foreigner continues to stay illegally in the territory.
In the case of Ms. Affum, the French authorities had “initiated no return process,” said the European Court.
A jail measure was therefore “likely to obstruct the application of this procedure and delay the return, and for that reason, undermining the effectiveness” of the Directive.
with AFP
