A ubiquitous border for migrants in transit and their rights: Analysis and consequences of the reintroduction of internal borders in France

Abstract

Article 6.3 of the Return Directive 2008/115/EC allows a Member State to refrain from issuing a return decision to a third-country national staying illegally in their territory if they are taken back by another Member State under bilateral agreements between the two states. Due to a regressive interpretation of this precept, France has temporarily reinstated border controls and is summarily pushing back or even forcibly deporting undocumented migrants to Spain. This article will argue that the Return Directive does not repeal the obligation to follow a formal readmission procedure (which includes the recognition of a due process to the migrant) and that the French refus d’entrée (denial of entry) is not an adequate procedure for such cases. In other words, all rejections done without ‘taking charge’ of the undocumented migrants are in fact violating the Return Directive. One of the main conclusions is that recent legal reforms in France have given rise to a ubiquitous border regime that considers its borders with other Member States as external borders in order to avoid the (few) guarantees provided by European Union law