JUDGMENT OF THE COURT OF JUSTICE IN CASE C-143/22 OF 21.09.2023

#94Judgment of the Court of Justice in case C-143/22 of 21.09.2023

The Court of Justice has ruled that the „return“ Directive applies to any third-country national who has entered the territory of a Member State without fulfilling the conditions for entry or residence.

The French Association des Avocats pour la défense des droits des étrangers („ADDE“) and several associations challenged before the Conseil d'Etat, France, the legality of the Resolution amending the law on the entry and residence of third-country nationals and the right of asylum.

ADDE and other associations claim that the Resolution allows the French authorities to refuse entry to third-country nationals at borders with other Member States where controls have been temporarily restored, on the basis of the Schengen Borders Code, on grounds of a serious threat to public policy or to the internal security of France, in breach of the „return“ Directive.

Under the „return“ Directive, a return decision must be issued against any third-country national who is unlawfully present in the territory of a Member State, on the basis of which the third-country national may be removed from the territory of the Member State in which he or she is unlawfully present. A third-country national may be considered to be staying illegally on the territory of a Member State without a residence permit or without fulfilling the conditions for entry into the country. However, the third-country national must, in principle, be given a certain period of time to leave the territory voluntarily. Forced removal shall be carried out only as a last resort.

The Council of State, France has therefore referred to the Court of Justice the question whether, where a Member State has decided to temporarily reintroduce checks at its borders, it may adopt a decision refusing entry in respect of a third-country national who has been apprehended without a residence permit at a border crossing point with its territory where such checks are carried out, solely on the basis of the Schengen Borders Code, without the third-country national having to comply with the common standards and procedures laid down in the „return“ Directive.

The Court of Justice has held that, in this case, a decision to refuse entry may be taken solely on the basis of the Schengen Borders Code, but that the common standards and procedures laid down in the „return“ Directive must be complied with in the event of the removal of the third-country national from the territory of the Member State concerned. For the reason that the „return“ Directive applies when a third-country national is present in the territory of a Member State after his/her unauthorised entry without having fulfilled the conditions for entry or residence. This also applies where the third-country national is apprehended at a border crossing point situated in the territory of the Member State concerned. The person may enter the territory of the Member State before crossing the border crossing point.

The Court of Justice has further held that Member States may detain a national pending his or her removal if he or she poses a threat to the security of the country, to public policy or is suspected of having committed a criminal offence liable to endanger public policy or the internal security of the Member State concerned.

In conclusion, a Member State may issue a decision to refuse entry to a third-country national solely on the basis of the Schengen Borders Code, if the third-country national is not being removed from the territory of the Member State. In the case of removal of a third-country national from the territory of a Member State, the common standards and procedures laid down in the „return“ Directive must be respected.