Rogue European Court is a Threat to Our Borders

Commenting on the European Court of Justice’s rulings this morning, Dominic Raab MP said:

‘These rulings by the European Court of Justice threaten the integrity of our borders, and create serious risks for our security. It’s also a stark illustration of our loss of proper democratic control to the EU over a sensitive area of policy.

‘The ruling increases the risk that illegal immigrants will be able to enter the UK, because it weakens the ability of other EU governments to put in place proper checks. The EU is simply not fit for purpose, and the only way to take back control is to Vote Leave on 23 June.’

1. The European Court has prevented EU member states in the Schengen Area from imprisoning persons who entered their territory from another EU member illegally without first applying the EU Returns Directive. This gives illegal entrants thirty days to return voluntarily. The decision will help illegal entrants to come to the UK. It could mean illegal migrants are released from detention.
2. The ruling follows a marked increase in persons using forged documents to enter the UK from the EU.
3. The European Court has also made it harder to remove asylum seekers to safe third countries within the EU. This will make it more difficult for the UK to remove illegal entrants who have already claimed asylum in another member state.
4. The European Court also delayed removals of asylum seekers from the UK, on the sole ground their asylum application in another member state was more than three months old.
5. The European Court has prevented EU member states in the Schengen Area from imprisoning persons who entered their territory from another EU member illegally without first applying the EU Returns Directive. This gives illegal entrants thirty days to return voluntarily. The decision will help illegal entrants to come to the UK. It could mean illegal migrants are released from detention.

Ms Affum, a Ghanaian national, was on a bus from Ghent to London. She was stopped by police officers at the entrance to the Channel Tunnel. ‘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 placed in police custody on the ground of illegal entry into French territory’. She was placed in administrative detention with a view to her return to Belgium.

The European Court held it was unlawful to imprison third country nationals for illegal entry unless the return procedure under EU law had been completed. The Court states that: ‘the Member States cannot permit third country nationals in respect of whom the return procedure established by Directive 2008/115 has not yet been completed to be imprisoned merely on account of illegal entry, resulting in an illegal stay’. A return decision in principle ‘shall provide for an appropriate period for voluntary departure of between seven and thirty days’. This will make it easier for illegal entrants to come to the UK.

The court held France could not exclude Ms Afum from this rule because she had entered from another country within the Schengen Area.

The European Court’s ruling follows a marked increase in persons using forged documents to enter the UK from the EU.

The EU’s own Frontex Agency has noted that: ‘The number of persons aiming to get to the UK with fraudulent document significantly increased (+70%) compared to 2014. This trend is mostly attributable to the increasing number of Albanian nationals often misusing Italian and Greek ID cards followed by Ukrainian nationals abusing authentic Polish ID cards’.

EU law permits EU nationals to enter the UK using identity cards, despite the high rate of forgery.

The European Court has also made it harder to remove asylum seekers to safe third countries within the EU. This will make more difficult for the UK to remove illegal entrants who have already claimed asylum in another member state.

Mr Ghezelbash is an Iranian national who applied for asylum in the Netherlands in March 2014, having already made an asylum application in France. The French authorities agreed to take him back under the Dublin Regulation. The UK is bound by the Dublin Regulation.

Mr Ghezelbash requested his application be examined ‘under the extended asylum application procedure in order to take full account of the documents produced by him’.

The Court ruled that the EU ‘did not confine itself… to introducing organisational rules simply governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve asylum seekers in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process’.

The Court stated that: ‘the EU legislature did not provide for any specific link or, a fortiori, any exclusive link’ between the right to an effective remedy and the possibility that an asylum seeker might be subject to inhuman and degrading treatment.

This means that asylum seekers in the UK can object to being removed to another EU country in which they made an asylum claim, even if there is no risk of them being subject to persecution there.

The European Court also delayed removals of asylum seekers from the UK, on the sole ground their asylum application in another member state was more than three months old.

The Swedish Government attempted to return Mr Karim, a Syrian national, to Slovenia. He applied for asylum in 2014 in Sweden, having already done so in Slovenia in May 2013. The Slovenian authorities agreed to take him back.

The European Court held that because Mr Karim had been outside Slovenia for more than three months, his application in Sweden ‘is to be regarded as a new application giving rise to a new procedure for determining the Member State responsible’ and that ‘the Member State in which the new asylum application was made is required to complete the process for determining the Member State responsible for examining that new application’.

The Court held as a result that Mr Karim could challenge the summary decision to remove him because he had been outside Slovenia for more than three months .