CJEU – C 444/17, Abdelaziz Arib v. France, 19 March 2019

Facts:

Mr. Arib, a Moroccan national, had been subject to an expulsion order removing him from France.

French authorities had just temporarily reintroduced border control at its common internal borders with other Member States of the Schengen area, on account of a “state of emergency” posed by a serious threat to public policy and internal security, when Mr. Arib had his papers checked on the 15th of June 2016, near the French/Spanish border, on board of a coach that had travelled from Morocco to France. He was subsequently apprehended for not being in possession of any document that would allow him to stay on French territory.

Mr. Arib was then held in police custody on suspicion of illegal entry into French territory. The following day, he was placed under administrative detention, as an order to leave France was issued against him.

On 21 June 2016, following an appeal to the Regional Court in Montpellier, the Court annulled Mr. Arib’s detention in police custody and subsequent proceedings. The Court of Appeal upheld the decision taken at first instance. Consequently, the Prefect lodged an appeal in the Court of Cassation against that decision.

Decision & reasoning:

On the first question, concerning the applicability of Article 2(2)(a) of Directive 2008/115 to the situation of a third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, where it was reintroduced internal border control, pursuant to Article 25 of the Code, the Court started its analysis by looking into the definition of illegal stay.

According to Article 3(2) of Directive 2008/115, the notion of illegal stay concerns a third-country national who illegally entered the territory of a Member State or does not fulfil the conditions for stay or residence. This applies to Mr. Arib, who after entering French territory illegally, was intercepted in the immediate vicinity of one of its internal borders, not fulfilling the conditions for stay or residence in that territory.

The Court agreed that the two situations covered by Article 2(2)(a) are exclusively related with the crossing of the external border of a Member State. The first situation covered by this article allows Member States not to apply it when third-country nationals are being denied entrance across an external border, or when they are intercepted after irregularly crossing an external border without having obtained a permission to stay in that Member State. The CJEU clarified that Mr. Arib is not being subject to a denial of entry into French territory. Instead, he was intercepted close to the border between France and Spain and held in custody following on suspicion of having committed the offence of illegal entry into French territory. Therefore, he cannot fall within the first situation covered by Article 2(2)(a). The second situation concerns a third country national who has been intercepted exactly when he/she was irregularly crossing the border, or near that border after it has been crossed.

Article 25 of the Code exceptionally allows Member States to temporarily reintroduce border control at its internal borders whenever the country is facing a serious threat to its public policy or internal security. Under Article 32, where border control at internal borders is reintroduced, the relevant provisions of the Code relating to external borders are to apply mutatis mutandis.

The CJEU permits that Member States, in the two situations covered by Article 2(2)(a), apply simplified national return procedures at their external borders, to allow a faster removal of third-country nationals in these circumstances. However, the mere reintroduction of border control does not mean that an illegally staying third-country national apprehended because they crossed an internal border, or in the immediate vicinity thereof, may be removed more than if he had been apprehended due to a police check for the purpose of Article 23(a) of the Code, without border control having been reintroduced. Even if such obligations were to apply where internal borders’ control had been reintroduced, point 2 Part A of Annex V of the Code and Article 26 of the CISA imposes on carriers an obligation of onward transportation of the third-country national only when that person has been refused entry across the border and not, as for Mr. Arib, when he/she is intercepted after crossing the border illegally.

So, the wording of the Code precludes an internal border at which border control has been reintroduced from being equated with an external border, thus Article 2(2)(a) of Directive 2008/115 does not apply in this situation.

On the second question, concerning the applicability of Article 2(2)(a) and 4(4) of the Directive 2008/115 to penalties introduced by national legislation directed to third-country-nationals who have illegally entered into the territory of a Member State, the CJEU found that Article 5(3) of the Code requires Member States to introduce penalties for the unauthorised crossing of an external border. Directive 2008/115 does not preclude the detention in custody of an illegally staying third-country national where such measures are adopted, on the ground that that person is suspected of having committed an offence other than merely having entered national territory illegally, in particular an offence that is likely to pose a threat to public policy or internal security in the Member State concerned.

Outcome:

Article 2(2)(a) of Directive 2008/115/EC, read in conjunction with Article 32 of the Schengen Borders Code, must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the Code.

Observations/comments:

The Schengen Borders Code provides Member States with the capacity of temporarily reintroducing border control at the internal borders, as a preventive and controlling measure with the purpose of trying to handle an occurrent serious threat to public policy or internal security.

The reintroduction of border control at the internal borders must be considered an exception and must respect the principle of proportionality in relation to the threat the country is facing. The scope and duration of such a temporary measure is limited in time and should be restricted to the bare minimum needed to respond to the dangerous situation in question.

The reintroduction of border control is a prerogative of the Member States. The European Commission may issue a recommendation regarding the necessity of the measure and its proportionality but cannot veto such a decision if it is taken by a Member State.

This summary was written by Matilde Chora, LLM Student at Queen Mary University London.