The Returns Directive applies to any third-country national who has entered the territory of a member state without fulfilling the conditions of entry, stay or residence.
Analysis of the Returns Directive (Directive 2008/115/EC)
Directive 2008/115/EC of the European Parliament and of the Council of December 16, 2008, also referred to as the “Returns Directive”, governs the common standards and procedures to be applied in member states in case of illegally staying third-country nationals. This is done in accordance with fundamental rights and international law.
The said Directive aims to establish clear, transparent and fair rules for establishing an effective return policy as a necessary element of a properly managed immigration policy.
When the Returns Directive applies
The Returns Directive applies from the moment when a third-country national, following his or her irregular entry into the territory of a member state, is present in that territory without fulfilling the conditions for entry, stay or residence, and it therefore in an irregular situation there.
This also applies when the person concerned has entered that territory even before having crossed a border crossing point where such checks are carried out.
However, the person concerned must benefit from a certain period of time to leave the territory voluntarily. Forced removal is foreseen only as a last resort.
Position of the Court of Justice on the Directive
The Court of Justice is questioned about the adoption of a refoulement measure on the basis of the Schengen Borders Code. Specifically, the Court is asked whether it is possible for a member state that has decided to temporarily reintroduce border controls at internal borders to adopt a refoulment measure against a third-country national discovered, without a valid residence permit, at an authorized border crossing point.
The Court responds that the refoulement measure can be taken on the basis of the Schengen Borders Code, but this must be done in compliance with the common rules and procedures set forth in the Returns Directive.
Furthermore, it specifies that the only case in which member states may exclude third-country nationals, whose stay is irregular, from the scope of the Returns Directive is when they are subject to a decision to refuse entry at an external border of a member state.
Finally, the Court recalls that the Returns Directive does not prevent the arrest of police detention of a third-country national whose stay in the national territory is irregular.
This is done when he or she is suspected of having committed an offense that may constitute a threat to public order or internal security of the member state concerned.