Two associations requested before the Council of State to order interim measures consisting in the immediate closure of the temporary police premises at the Menton border with Italy and to suspend the Prefect order of 29 December 2020 not to allow access there to two representatives of the respective associations. The request was based on the allegation that third country nationals are unlawfully detained in those premises, refused entry to France and being kept in inappropriate conditions, thus violating fundamental rights and the right to access asylum procedures in France.

The Council of State interim judge dismissed the request and noted the following:

1. On the entry denial and conditions of temporary detention – the Council of State stated that the entry refusal is applied in accordance with the national legislation, that the associations did not demonstrate that living conditions have changed or are not appropriate in those facilities, on the contrary the last official visit in 2018 reported improvements in the facilities.
2. On the return – the Council of State reiterated the CJEU cases C-444/17 and stated that national provisions allowing to refuse entry to applicants for international protection are not incompatible with EU law. The interim judge made a distinction between  third country nationals found after crossing the border and for whom the Return Directive applies and those who have not crossed yet and to whom the Schengen Borders Code is applicable, as in the present case and the refusal of entry is compatible with EU law.
3. The French police is working in cooperation with the Italian counterpart in order to comply with a limited deadline of temporary detention which in general does not go overpass 24 hours.
4. On the living conditions, the Council of State noted that the authorities are diligent with regard to provision of basic need (food, accommodation, hygiene etc) and a special attention is paid to vulnerable and for overnight stay. In the absence of any alternative to cover such situations, it is not considered adequate to leave those person without shelter over night; moreover the police ensures that women and children are not kept together with males and the unaccompanied minors are not sent back to Italy but taken in charge by agreed associations and departmental services.

For the reasons abovementioned, the Council of State dismissed the request to order an immediate closure of the temporary police premises at the border with Italy and where third country nationals, who were refused entry to France are temporarily retained, because the interim judge found no treatment contrary to the protection of fundamental rights.