France wrong to imprison illegal immigrant en route to UK, rules Luxembourg

The ECJ said yesterday that EU member states were prohibited from imprisoning the non-EU migrant who is in the country illegally, and whom they have not attempted to return.

The woman, Selina Affum, was in possession of a false passport when she was stopped by French police on a coach travelling to London from Belgium.

“After presenting a Belgian passport with the name and photograph of another person, and lacking any other identity or travel document in her name she was initially placed in police custody on the grounds of illegal entry to French territory. The French authorities then requested Belgium to readmit her to its territory,” said the ruling, adding that Ms Affum was challenging her detention.

The Home Secretary, Theresa May, has received calls for increased resources, to stem the flow of migrants illegally crossing the Channel into Britain.

The European court ruling lays down the EU directive on “illegal staying third country nationals” and creates a common procedure that applies to all EU member states who want to remove illegal migrants from their territory.

The judges held that an illegal migrant must be given the opportunity to return to their country voluntarily before forcible removal measures are used.

“If voluntary departure does not take place, the directive requires the member states to carry out forced removal using the least coercive measures possible. It is only if there is a risk of the removal being compromised that the member state may keep the person concerned in detention, the duration of which may not in any case exceed 18 months,” the court stated.

However, the court did hold that imprisonment would be permitted in certain circumstances, such as if the migrant had previously not complied with the voluntary leaving scheme, or has tried to re-enter the country upon being deported.

Migrants can also be locked up in member states if they have committed some other crime, not relating to their migration.

The judges held that Ms Affum was merely travelling between Belgium and her intended destination, the UK, when she was detained in France, and this does not permit the terms of imprisonment in the EU directive to apply.