EU Member States may not punish migrants for illegal entry by imprisoning them

Migrants who illegally cross the borders of most EU Member States in the Schengen zone may not be punished with imprisonment for so doing. The European Court of Justice has decided that instead of that punishment, the Member State concerned should take advantage of the so-called Return Directive to deport the migrant, according to the conditions of the directive, back to the country from which the migrant performed the illegal crossing.

The ruling applies to migrants crossing borders within the zone and applies when they attempt to leave the zone. The Court's ruling concerned the case of a citizen of Ghana, Selina Affum, whom police arrested on the French side of the tunnel beneath the English Channel for carrying falsified Belgian travel documents.

Affum was then taken into custody by the authorities for having illegally entered French territory. Her legal representation argued that this procedure by the authorities was itself illegal because it violated the Return Directive.

The French court turned to the European Court of Justice to ask whether it is possible, in connection with the Return Directive, to punish non-EU citizens by imprisoning them for illegal entry. According to French law, a court can sentence migrants from non-EU Member States to up to one year in prison for illegally entering the country.

If, moreover, such persons are suspected of having committed criminal activity that would eventually be punished with imprisonment in the event of their conviction, they can also be taken into custody in France. According to the European Court of Justice, however, the punishing of migrants solely because they have illegally crossed a border will delay the process of their deportation back to either their country of origin or the transit country from which they made the illegal crossing.

The Return Directive establishes that a migrant who has crossed the border illegally and then been told by the authorities to leave has up to 30 days to voluntarily do so. If the migrant does not do so, then the state can proceed to forcibly deport the migrant, but the deportation must not be performed with the use of disproportionate force or in a way that puts the migrant's life at risk.

The verdict also acknowledges that a migrant can be detained for up to 18 months if there is a risk that the migrant's deportation would otherwise be thwarted. The BBC reports that this formulation can be interpreted as meaning the authorities suspect there is a risk the migrant will flee somewhere else unless detained.

Detention is also permissible in cases when the person concerned faces a deportation proceedings but refuses to leave the country, or if the person has already been deported and now is attempting to illegally enter the country again, despite having been banned from doing so. In its explanation of the impact of the verdict, the BBC reports that it will not apply to Denmark, which is part of the Schengen zone but has negotiated exceptions for itself when it comes to EU judicial policy.

The verdict also does not apply to either Britain or Ireland, which are not part of Schengen, as they have their own travel union. Other EU Member States that are not part of the Schengen zone are Bulgaria, Croatia, Cyprus and Romania.