The case arose when a Ghanaian national, Selina Affum, on 22 March 2013, was intercepted by the French police at the point of entry to the Channel Tunnel when she was on a bus from Ghent (Belgium) to London (UK).
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 ground of illegal entry into French territory. The French authorities then requested Belgium to readmit her into its territory.
Ms Affum disputed that it was lawful to place her in police custody and the French judiciary referred the matter to the European Court of Justice to ask whether, in the light of the European Return Directive, illegal entry of a national of a non-EU country into national territory may be punished by a sentence of imprisonment.
The European Return Directive states that, if a migrant is found to be staying illegally, a "return decision" has to be adopted. That decision triggers, in principle, a period for voluntary return, followed, if necessary, by forced removal measures. If voluntary departure does not take place, the directive requires the Member States to carry out forced removal using the least coercive measures possible.
The European Court of Justice ruled that — if a was person found illegally staying in an EU state within the Schengen area and imprisoned — it would delay the return process, under the directive, thus rendering it ineffective.
The International Organization of Migration (IOM), welcomed the ruling. Spokesman Leonard Doyle said:
"The ruling is important in that it sends a clear signal that the use of detention should be used less and, as stated, as a last resort."