Préfet des Pyrénées-Orientales v Abdelaziz Arib and Others.
Date: 2019-03-19
37


It should be pointed out, in that regard, first, that it follows from both the definition of the concept of ‘illegal stay’, set out in Article 3(2) of Directive 2008/115, and recital 5 of the directive, according to which the directive applies ‘to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence’, that a third-country national who, after entering the territory of a Member State illegally, is present on that territory without fulfilling the conditions for entry, stay or residence is, by virtue of that fact, staying there illegally, without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 48 and 59).
39


A third-country national in that situation falls, under Article 2(1) of Directive 2008/115, and without prejudice to Article 2(2) of the directive, within the scope of the directive. He must therefore, in principle, be subject to the common standards and procedures laid down by the directive for the purpose of his removal, as long as his stay has not, as the case may be, been regularised (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 61).
40


In that respect, it should be noted, secondly, that according to the Court’s case-law, Directive 2008/115 does not preclude legislation of a Member State which permits the imprisonment of a third-country national to whom the return procedure established by the directive has been applied and who either is staying illegally on the territory of that Member State without a justified ground for non-return or has re-entered the territory in breach of an entry ban (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 54 and 64).
45


In that context, it must be recalled, first, that according to the Court’s case-law, the two situations covered by Article 2(2)(a) of Directive 2008/115 relate exclusively to the crossing of the external border of a Member State, as defined in Article 2 of the Schengen Borders Code, and therefore do not concern the crossing of a common border of Member States forming part of the Schengen area (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 69).
46


Specifically, the second situation covered by Article 2(2)(a) of Directive 2008/115 implies a direct temporal and spatial link between the apprehension or interception of the third-country national and the crossing of an external border. That situation therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 72).
47


Accordingly, Article 2(2)(a) of Directive 2008/115 must be interpreted as not permitting Member States to exclude certain illegally staying third-country nationals from the directive’s scope on the ground of illegal entry across an internal border (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraphs 69 and 77).
52


With regard, secondly, to the intended purpose of Article 2(2)(a) of Directive 2008/115, the Court has previously held that it permits the Member States, in the two situations covered by that article, to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted in connection with the crossing of one such border (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 74).
64


However, and regardless of whether that provision is a relevant provision, within the meaning of Article 32 of the Schengen Borders Code, and thus applies mutatis mutandis where border control is reintroduced by a Member State at its internal borders, the Court notes, in any event, that this provision is not in any way intended to derogate from the common standards and procedures established by Directive 2008/115, as expressly confirmed in Article 13(1) of the code, which provides that measures are to be taken against persons who have crossed an external border illegally and that, if that person has no right to stay on the territory of the Member State concerned, he or she is to be apprehended and made subject to the procedures respecting Directive 2008/115 (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 90).
65


Article 13(1) of the Schengen Borders Code thus explains the relationship between border surveillance and the implementation of the return procedures provided for in Directive 2008/115 (judgment of 26 July 2017, Jafari, C‑646/16, EU:C:2017:586, paragraph 69). Accordingly, the measures adopted by Member States, in particular in compliance with Article 5(3) of the Schengen Borders Code, in order to ensure effective border surveillance, cannot lead to a modification of the obligations imposed on Member States by that directive.
66


Lastly, it is important to recall that Directive 2008/115 does not prevent Member States from being able to impose a sentence of imprisonment to punish the commission of offences other than those stemming from the mere fact of illegal entry, including in situations where the return procedure established by the directive has not yet been completed (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 65). Therefore, the directive does not preclude either the apprehension or detention in custody of an illegally staying third-country national where such measures are adopted on the ground that that person is suspected of having committed an offence other than merely having entered into national territory illegally, in particular an offence that is likely to pose a threat to public policy or internal security in the Member State concerned.