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EU Court rules no jail for migrants illegally entering an EU state in the Schengen zone

European Court of Justice has ruled that migrants cannot be jailed for illegally crossing into a country illegally.


The EU’s top court ruled that the EU Return Directive prevents arrest and imprisonment unless non-EU migrants are suspected of having committed a crime or already have been subject to deportation procedures.

The court made the ruling in a case a brought forward by Selina Affum, a Ghanaian woman who was intercepted by the French police at the point of entry to the Channel Tunnel when she was on a bus from Ghent (Belgium) to London (UK). After presenting a Belgian passport with the name and photograph of another person, and lacking any other identity or travel document in her name, she was initially placed in police custody on the ground of illegal entry into French territory. The French authorities then requested Belgium to readmit her into its territory.

Since Ms Affum disputed that it was lawful to place her in police custody, the Cour de cassation (French Court of Cassation) asked the Court of Justice whether, in the light of the Return Directive, illegal entry of a national of a non-EU country into national territory may be punished by a sentence of imprisonment.

“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,” the Court ruled. “That is also the case where that national, who is merely in transit on the territory of the Member State concerned, 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.”

The International Organisation of Migration (IOM) welcomed the ruling saying, it was “in line with international standards and interpretation on when detention is legitimate – when it is a measure which has a legitimate purpose and is proportionate”.

Spokesman Leonard Doyle told the BBC: “Most countries do however not use detention as a punitive measure, but detention is too frequently used as an administrative measure. The ruling is important in that it sends a clear signal that the use of detention should be used less and, as stated, as a last resort.”

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