On the 30th of March 2023, the CJEU published the Advocate’s General Opinion in respect of C‑143/22. The case was brought before the French Council State by several associations seeking the annulment of a domestic order allowing the refusal of entry of a third country national (TCN) at the internal borders of the Schengen area at which checks are reintroduced. The Council submitted a preliminary question on whether TCNs may be refused entry on the basis of the Schengen Borders Code, without the Return Directive being applicable.
The Advocate General Rantos (AG) stated that Article 2(1) of the Return Directive provides that it applies to TCNs staying illegally on the territory of a MS. The AG noted that the CJEU already held that the concepts of ‘illegal stay’ and ‘illegal entry’ are closely linked, because such entry is one of the factual circumstances that may result in TCN’s stay being ‘illegal’. Hence, the AG concluded that it is impossible to accept France’s argument that TCNs who are refused entry to a Member State (MS) are not staying on the territory of a MS, as that would amount to unilaterally restricting the personal scope of the Return Directive and so revoking a stay which had already begun. MS are therefore required to apply the Directive to any person stopped at an internal border of the Schengen area. Article 14 of the Schengen Code cannot change that conclusion.