On 19 March, the Court of Justice of the European Union (CJEU) ruled on a preliminary reference regarding the possibility to not apply the Return Directive on a case of irregular crossing of an internal border to which checks had been re-established according to Article 25 of the Schengen Borders Code.

The case concerned the apprehension at the Spanish-French border of a Moroccan national, who did not possess any document that would allow him to stay on French territory. He was placed under administrative detention, as an order to leave French territory was issued against him. After several legal challenges the case reached the Court of Cassation, which submitted the preliminary reference.

First, the Court noted that the applicant was not subject to a refusal of entry into French territory but was instead checked by French authorities near the border between France and Spain after its reinstatement under Article 25 of the Schengen Borders Code. Referring to its case law, the Court observed that a third-country national who enters the territory of a Member State illegally and is then intercepted in the immediate vicinity of one of its internal borders must be regarded as staying illegally on that territory. Therefore, a person in this situation would fall under Article 2 (1) of the Return Directive and should be subject to the common standards and procedures laid down by the Directive.

However, according to the aforementioned case-law the situations covered by Article 2 (2) (a) of the Return Directive relate exclusively to the crossing of the external border of a Member State and therefore do not concern the crossing of a common border of Member States forming part of the Schengen area. The Court noted, inter alia, that under Article 2 of the Schengen Borders Code, the concepts of ‘internal borders’ and ‘external borders’ are mutually exclusive and cannot be equated, even if internal border control has been reinstated.

Accordingly, the Court concluded that Article 2 (2) (a) of the Directive 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 controls at that border.