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European Court of Justice: France’s returns policy is illegal

On Thursday, EU Commission spokesperson Anitta Hipper commented on the ruling of the EU Court of Justice that recognised France’s actions in pushing migrants into Italy as illegal. Anitta said:

“Reintroducing internal border controls must remain an exceptional measure, strictly limited in time.”

It all started with a lawsuit filed in a Luxembourg court by a coalition of non-governmental organisations, including Lawyers for Foreigners’ Rights and the League for the Defence of Human Rights. In the proceedings, the French Council of State asked the Luxembourg court to clarify whether the suspension of freedom of movement under the Schengen Treaty, which Paris has repeatedly extended since 2015 in the wake of the Bataclan attacks, allows it to refuse third-country nationals who also enter through the EU’s internal borders. Formally, the question is whether the Schengen Border Code can be applied exclusively, ignoring the Return Directive.

The EU Court of Justice rejected this initiative, noting that in practice the suspension of the Schengen system allows for the re-establishment of internal border controls, but does not change their nature. They remain internal controls, and on the common territory of the EU. Therefore, the exceptions to the Return Directive, provided for only in extraordinary cases, do not apply.

This is not the case on the border between France and Italy, where border procedures must be in full compliance with the Directive, according to which the forcible expulsion of an illegal alien is a measure of last resort that must be preceded by other gradual steps. Most importantly, the migrant must be asked to voluntarily comply with the order to leave the territory of the country. The court realises that in this case the order loses much of its effectiveness, but this is not enough to disregard the established procedure.

The judges emphasised that the authorities of an EU Member State have the power to detain an irregular foreign national by placing him or her under administrative detention with a view to repatriation or arresting him or her if the conditions for doing so exist. However, it is not permissible to turn a migrant around at the border in breach of the Return Directive. Gianfranco Schiavone of the Association for Legal Studies on Immigration (ASGI) explains:

“The Court says one can’t pretend to be on an external border, as if that person never entered the territory of the Union. Reinstating controls doesn’t authorize one to derogate from the common rules, because that is still European territory regardless.”

Schiavone believes that between the lines of the ruling can be read as a warning to France and all other member countries:

“You cannot try to restore internal borders for the purpose of rejecting migrants as if the common area did not exist.”

According to data released in the summer by the prefecture of Nice and cited in a study by Doctors Without Borders, 13,395 people were stopped or turned back at the French-Italian border between 1 January and 15 June this year, a sharp increase over the previous 12 months.

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