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

EU court rules that France’s policy pushing back migrants to Italy is illegal

“Reintroducing internal border controls must remain an exceptional measure, strictly limited in time,” reiterated EU Commission spokeswoman Anitta Hipper on Thursday, commenting on the ruling of the EU Court of Justice that the pushbacks that France is carrying out are illegal, rejecting migrants back to Italy as if the border near Ventimiglia was an external border and not EU territory.

The case stems from a lawsuit brought before the courts in Luxemburg by a coalition of NGOs, including Avocats pour la Défense des Droits des Etrangers and the Ligue des Droits de L’homme. In the course of the proceedings, the French Council of State had asked the Luxembourg court to clarify whether the suspension of freedom of movement under the Schengen Treaty, which Paris has been repeatedly renewing since 2015 in the wake of the Bataclan attacks, allows the rejection of third-country nationals coming in across internal EU borders as well. Technically, the issue was whether the Schengen Border Code could be applied exclusively, disregarding the Return Directive.

The EU court rejected this scenario, stressing that in practice, suspending the Schengen system makes it possible to reinstate internal border controls, but not to change their nature. They still remain internal controls, on common EU territory. Therefore, the exceptions to the Return Directive, which are provided only for extraordinary cases, do not apply. Basically, these allow rejecting a third country national from the territory of a member state in the form of pushback instead of expulsion or repatriation, a simplified procedure that is allowed at the external EU borders precisely due the fact that the person has not entered the European Union.

This is not the situation on the border between France and Italy, where border procedures must fully comply with the Directive, which states that the forced expulsion of an irregular foreigner is only a last resort and must be preceded by other gradual steps. Most importantly, a request must be made to the migrant to voluntarily comply with the order to leave the territory. The Court is aware that such an order will lose much of its effectiveness in this scenario, but this is not enough to justify disregarding the prescribed procedure.

The judges stressed that, of course, the authorities of a member state have the option of detaining the irregular foreign national, by placing them in administrative detention for the purpose of repatriation or arresting them if the conditions for this are met. However, it is not permitted to turn a migrant back at the border in disregard of the Return Directive.

“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,” explains Gianfranco Schiavone of the Association for Legal Studies on Immigration (ASGI).

According to Schiavone, between the lines of the ruling one can read 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.”

On April 26, 2022, the EU Court had ruled against Austria on a similar issue, saying that the Schengen Border Code allowed a member state to temporarily reintroduce border controls in the event of a serious threat, but with a maximum limit of six months. According to the European court, this is a hard limit and the suspension of free movement can only be extended in the event of a new serious threat, distinct from the initial one. In spite of this decision, on July 27, 2022, the French Council of State approved yet another six-month renewal of the reintroduction of internal border controls. Indirectly, the court’s new ruling is a censure against such behavior.

However, implementing rulings by the Luxembourg judges remains the responsibility of individual member states. On Thursday, Hipper highlighted this fact, saying that the Commission will limit itself to monitoring the ruling with regard to France’s pushbacks.

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

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