No detention for Illegal Migrants under 2008 Return Directive: EU Court

Jun 8, 2016 12:36 IST

European-court-of-justiceEuropean Court of Justice on 7 June 2016 ruled that non-EU (European Union) migrants who illegally entered an EU member state should not face detention. In its direction it said, under the Europe's 2008 Return Directive, the migrants staying illegally should be returned back to the country from which they came from.

It said that the ruling applies to migrants crossing borders within the Schengen passport-free zone and on leaving the zone.

The ruling came into effect in the case of a Ghanaian woman migrant, Selina Affum. On 22 March 2013, she was found using false Belgian travel documents by French police at the entrance to the Channel Tunnel. At that time, she was on a bus from Ghent, Belgium to London, United Kingdom.

Later, the French police placed her in police custody on grounds of illegal entry into French territory.

Affum argued that her detention was illegal, in light of the EU's Return Directive.

Affum’s case was referred to the European Court of Justice, the EU's highest court, by the French court of Cassation.

2008 Return Directive

• Under the policy, the migrant is asked to voluntarily leave the Union within 30 days. After which, the removal should not involve excessive force or place the person’s life in danger.

• Its calls on authorities to take into consideration the best interests of children, family life, and the state of health of the third-country national concerned of the illegal migrants.

• It 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.

• This was also the case when the migrant is intercepted when leaving the Schengen area.

Some important conditions mentioned under the ruling for detention of an illegal migrant include

• Any migrant can be jailed or detained for up to 18 months, when it is believed that the person has committed a separate crime and the return order issued by authorities is not executed.

• He/she can be detained if the person is subject to a deportation order and has refused to go, or if they have already been deported, and have attempted to re-enter the country illegally, in breach of an entry ban.

Schengen zone

• The Schengen Area is the area including 26 European countries that have abolished passport and any other type of border control at their mutual borders.

• It mostly functions as a single country for international travel purposes, with a common visa policy.

• The area is named after the Schengen Agreement.

• Countries in the Schengen Area have eliminated border controls with the other Schengen members and strengthened border controls with non-Schengen states.

• Twenty-two of the twenty-eight European Union (EU) member states participate in the Schengen Area.

• The six EU members that are not a part of the Schengen Area include Bulgaria, Croatia, Cyprus, Romania, Ireland and the United Kingdom.

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