Introduction
The establishment of the Schengen area, with its goal to facilitate the free transit of people between states, represents one of the most innovative regulatory aspects within European territory. In this context, the free movement which follows from the existence of the Schengen mechanism applies to EU citizens, Schengen-associated country nationals, and third-country nationals (TCNs) legally present in European territory.
Article 22 of the Schengen Borders Code (SBC) is clear when establishing that, regardless of nationality, Schengen internal borders “may be crossed at any point without a border check”. This provision is reasonable to the extent that, otherwise, the idea of a free-movement zone would be impossible to implement because some border control mechanism would be needed to determine who is entitled to free transit.
Nevertheless, there are some circumstances under which Member States can temporarily reintroduce controls at their internal borders. Chapter II of the SBC regulates this exceptional possibility, limiting it only to cases of serious threats to internal security or public policy (Article 25(1)). Furthermore, the temporal scope for its application is limited to thirty days or, in some cases, the expected time frame of the serious threat.
In such situations, Article 32 of the SBC expressly establishes that the provisions for external borders shall apply mutatis mutandis. However, this raises significant questions, particularly concerning the framework and procedures governing internal border control and the refusal of entry of TCNs. In particular, the latter is relevant considering Article 2(2) of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals (the Return Directive), which establishes the exceptions to its application.
Through the years, the Court of Justice of the European Union progressively clarified the scope of the Return Directive regarding internal border crossings. Its 2023 judgement in the ADDE case is relevant to the continuing effort to clarify the boundary between Member State’s border prerogatives and EU-wide guarantees for TCNs. In light of the above, it is relevant to determine what are the implications of the ADDE case in regard to illegally staying TCNs’ rights and the broader Schengen area acquis. Addressing this question is important because the use of internal border controls across the Schengen area is currently expanding and becoming increasingly normalized and, in this context, ADDE is the most recent case highlighting the limits of Member States’ discretion and the effectiveness of EU procedural safeguards for TCNs.
The ADDE judgement and the opinion of the Advocate General (AG)
The Court explained that, through the interpretation of Article 14 of the SBC considering Article 32 of the SBC, Member States may apply Article 14 mutatis mutandis and refuse the entry of TCNs at their internal borders when such controls have been temporarily reintroduced (paragraphs 29-30, 39). It also established that a TCN who is present on a Member State’s territory without meeting the requirements for lawful residence, stay, or entry is, by definition, staying illegally and falls under the scope of the Return Directive (paragraph 31). Hence, the Return Directive’s framework and guarantees are applicable to TCNs apprehended at Member States’ internal border crossings (paragraphs 31-32).
The Court highlights that the two exceptions to the application of the Return Directive provided under its Article 2(2)(a) refer solely to situations concerning external borders (paragraphs 31-32, 36): (i) when TCNs are refused entry under Article 13 of the SBC or (ii) when they are detained or stopped in relation with the irregular crossing of a Member State’s external border without having subsequently remedied this situation. The Court held that these exceptions cannot be relied upon by Member States that have reintroduced internal border checks to exempt themselves from the common return standards, frameworks and procedures of the Return Directive when seeking to remove a TCN (paragraphs 37, 40, 45).
Regarding the French government’s argument based on Article 72 of the TFEU, the Court held that the Return Directive is not incompatible with Member States’ duties to maintain public order and internal security for four reasons. This given that: a) Article 6(1) of the Return Directive requires that TCNs must be subjected to a return decision (paragraph 41); b) Article 8 of the Return Directive allows for the forced removal of TCNs when the TCN did not comply with the return obligation within the voluntary departure period or in situations under Article 7(4), referring to risks like absconding, fraudulent stay applications, and security threats (paragraph 42); c) Article 15 of the Return Directive allows for the detention of TCNs under certain circumstances (paragraph 43); and, d) the Return Directive does not exclude Member States from sanctioning, even through imprisonment, criminal conduct other than the mere act of illegal entry (paragraph 44).
On another note, the AG advised that the answer to the Council’s question should be that the Return Directive is applicable and that, on the contrary, Article 14 of the SBC is not. He highlighted that the ratio legis of Articles 14 and 6(1) of the SBC implies that Member States situated at Schengen external borders are obliged to prevent the entry of TCNs who do not meet the conditions for entry to the Schengen area.
If a TCN has already entered the Schengen area, the relevant Member State’s duty shifts away from the refusal of entry mechanism (Article 14 of the SBC) and focuses on proceeding according to the Return Directive. Thus, unlike the Court, the AG expressly recognized Member States’ duty to return the illegally staying TCN once apprehended. Finally, the AG also emphasized that the Return Directive has a wide ratione personae scope, which should not be unilaterally limited by Member States.
ADDE’s implications
- Regarding the Schengen acquis
In recent years, particularly after the 2015 refugee crisis, Member States have been increasingly resorting to the reintroduction of internal border controls (Title III of the SBC). Currently, thirteen of such controls operate across ten countries, nine of which expressly mention irregular migration as the main or one of the main grounds for their reintroduction.
Recital 4 of the SBC expressly establishes that the framework and regulations on internal border crossings and external border controls must “reflect the Schengen acquis incorporated in the Union framework.” Likewise, Articles 77(1)(a) and 77(2)(e) of the TFEU specifically stipulate that the Union must pursue a policy designed to secure the removal of all checks on persons crossing internal borders, irrespective of nationality, and that the European Parliament and the European Council must enact measures to this end.
As observed by the AG, the ADDE case sits within the jurisprudential line set forth by the Affum and Arib cases, particularly in regard to the argument that the exceptions enshrined in Article 2(2) of the Return Directive should apply by analogy to internal borders where controls have been reinstated. In this regard, the Court has already clarified that the scope of the article must be interpreted strictly and cannot be extended to situations occurring within the territory of a Member State or at an internal border crossing point.
Therefore, ADDE confirms and strengthens this jurisprudential holding by, once again, rejecting Member States’ attempts to “externalise” internal borders and, consequently, avoid applying the guarantees enshrined in the Return Directive. In doing so, ADDE reinforces the integrity of the Schengen acquis and protects the structural objective of Schengen. Thus, the Court highlights the maintenance of an area characterised by the free movement of persons subject only to narrowly circumscribed and proportionate limitations.
- Regarding TCNs’ rights
ADDE also has consequences for Member States’ human rights compliance in their internal border enforcement. It not only establishes the importance of procedural safeguards when dealing with illegally staying TCNs but also contributes to the alignment of internal Schengen border practices to fundamental EU rights. This is important considering Article 4 of the SBC, which expressly obliges Member States to comply with fundamental rights, including the Charter of Fundamental Rights of the European Union (CFEU) and the Convention Relating to the Status of Refugees (the Refugee Convention).
From a practical perspective, ADDE implies that, in circumstances where internal border controls are reintroduced, Member States cannot bypass individualised assessments of TCNs’ situations, limits on detention, voluntary departure periods, remedies, and procedural guarantees. At the very least, it is relevant to highlight two key aspects: voluntary departure and non-refoulement.
Voluntary departure periods are considered one of the cornerstones of the Return Directive. In this light, the application of Articles 7(4) and 8(1) of the Return Directive to internal borders implies that Member States must offer this option to TCNs unless specific, individualised reasons justify immediate removal. Furthermore, the right to be heard encompasses discussion of “the conditions of return,” including the period allowed for voluntary departure. Consequently, removing or returning a TCN at an internal border without a proper evaluation of their particular situation and without giving them the opportunity to be heard is contrary to both Article 7 of the Return Directive and Article 41 of the CFEU, which guarantees “every [person’s]” right to good administration.
Regarding the principle of non-refoulement, the applicability of the Return Directive ensures that the guarantees enshrined in its Article 5 are observed, which is relevant considering Article 33 of the Refugee Convention. Following ADDE, Article 5 of the Return Directive requires Member States to explicitly identify “the country to which [the TCN] must return,” thereby creating a procedural obligation that prevents informal or summary removals. The importance of this provision is even more evident from the fact it was invoked in Commission v Hungary, a case addressing “pushbacks of asylum seekers.” Seen in this light, ADDE is crucial to understand the “importance of procedural obligations in challenging pushbacks.”
ADDE also implicitly challenges the long-standing “non-entry legal fiction.” When the Court clarifies that a TCN can be illegally staying in a Member State’s territory “even before crossing a border crossing point,” it contests the so-called external border “non-entry legal fiction” under Article 14(1) of the SBC. This concept refers to the understanding that, regardless of the actual crossing of territorial borders, the authorisation of entry at a Member State’s border is the moment to be considered when determining whether a TCN has, in fact, entered the EU.
This is relevant because this “non-entry legal fiction” can be used to exclude asylum seekers from protection in the EU, given that applications must be made in the Member States’ territories. This is, for instance, evidenced in Article 3 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection, which clearly states that its ratione loci is limited to applications lodged within the geographical territory of Member States (not including, for instance, representations abroad). Therefore, the relevant guarantees and procedural frameworks are effectively operational only after an individual is considered to have entered the Member State.
Nevertheless, despite the described upsides of the decision, the ADDE case raises some new questions related to TCNs’ rights. This is indeed relevant, particularly concerning the Return Directive’s limited capacity to protect the rights of TCNs moving across Member States, since it leaves key issues open, such as detention safeguards, criteria for assessing lawful stay (including in other Member States), and rules on forcible intra-EU transfers largely unaddressed. In this regard, it must also be noted that the Return Directive itself is somewhat of a paradoxical legal instrument since it substantially represents a mechanism to facilitate the expulsion of individuals while, at the same time, codifying and incorporating human rights-based protections.
Conclusion
In a context where migration is associated with ideas about (in)security, due to its implications for the Schengen acquis and the rights of TCNs. This judgement follows the jurisprudential line set forth in Affum and Arib by reaffirming the importance of differencing external and internal borders in cases where internal border checks have been reestablished. In doing so, it upholds the concept of free movement as a pillar within the EU thus reinforcing the Schengen acquis and the wide ratione personae scope of the Return Directive.
The latter has an impact in the recognition of TCNs’ rights because it entails that, even when internal borders are reestablished, illegally staying TCNs are entitled to certain procedural rights and guarantees. The practical effect of this interpretation is the definite closure of the legal gap which Member States could exploit to justify summary removals, unjustified refusals of entry, and other practices contrary to EU standards. Likewise, ADDE arguably contributes to strengthen the non-refoulement principle within EU practice, as it reaffirms procedural obligations which are central to challenge pushbacks and disrupt the “non-entry legal fiction” used to exclude certain asylum seekers from applying to international protection.
Nevertheless, ADDE is not without its shortcomings. One critique is the contradiction in recognizing the applicability of both the Return Directive and Article 14 of the SBC mutatis mutandis, leading to conceptual confusion between refusal of entry and return decisions. Another critique concerns the fact that it does not explicitly mention Member States’ duty to return illegally staying TCNs. Likewise, it does not provide further insight to issues unaddressed by the Return Directive regarding TCNs’ rights. For this reason, ADDE advances an existing jurisprudential line but does not resolve the frictions between border control, free movement, and TCNs’ rights within the EU.
Bio
Estephany Ximena Leon Rodriguez is a Peruvian lawyer (PUCP, Summa Cum Laude) and Erasmus Mundus scholar specializing in international human rights, migration, and transitional justice, with working experience at the Asser Institute, IACHR, CEJIL, and the Constitutional Court of Peru, among others.