On 15 June 2016, Mr. Arib was checked while on board a coach travelling from Morocco in the area between the border of France and Spain, following a temporary reintroduction of border controls at France's common internal borders with other Member States of the Schengen Area. Mr. was held in police custody on suspicion of illegal entry into French territory, and the next day, the Prefect ordered him to leave France and his administrative detention. On 21 June 2016, the Regional Court in Perpignan annulled Mr. Arib's detention in police custody, holding that as an irregularly staying third-country national who had crossed an internal border, Directive 2008/115 (Return Directive) applied, and no term of imprisonment could be imposed based on the circumstances. This decision was upheld by the Court of Appeal in Montpellier, and the Prefect lodged an appeal in cassation against that order before the Court of Cassation, indicating that where there is a serious threat to public policy or internal security, a Member State may exceptionally reintroduce border control at its internal borders, partially disapplying the Returns Directive.

The Court of Cassation decided to stay the proceedings and refer three questions for a preliminary ruling to the Court of Justice of the European Union (CJEU).

The first and second questions, examined together, concerned whether Article 2(2)(a) of the Return Directive, read with Article 32 of the Schengen Borders Code, must be interpreted as applying to the situation of a third-country national apprehended in the immediate vicinity of an internal border at which border control has been reintroduced pursuant to Article 25 of the Code, on account of a serious threat to public policy or internal security in that Member State.

As a preliminary matter, the Court noted that a third-country national who enters the territory of a Member State illegally and is then intercepted in the immediate vicinity of one of its internal borders must be regarded as staying illegally on that territory and therefore falls within the scope of the Return Directive under Article 2(1). The procedures envisaged in the directive apply to such individuals unless their stay has been regularised. Next, the court evaluated whether Mr. Arib could instead be excluded from the directive's scope under the two situations of Article 2(2)(a). Referring to her ruling in Affum (C-47/15, 7 June 2016), the court recalled that the two situations covered by Article 2(2)(a) of the Return Directive relate exclusively to the crossing of the external border of a Member State and not crossing a common border of Member States part of the Schengen area.

Since Mr. Arib was not subject to a refusal of entry into French territory, he could not fall under the first situation.

As for the second situation, the court recognised that it implies a direct temporal and spatial link between the apprehension or interception of the third-country national and the crossing of an external border thus,  it concerns third country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed. However, it had to be determined whether the fact that border control was reintroduced by a Member State at its internal borders is such as to cause the situation of a third country national staying irregularly and apprehended near that internal border to fall within Article 2(2)a of the Returns Directive. The court noted that, as a derogation from the scope of Directive 2008/115, the exception in Article 2(2)(a) of the Returns Directive must be interpreted strictly.

The court noted that from the literal wording of the provision, Article 2(2)(a) referred to external borders. Next, the court looked at the purpose of the provision. In this respect, it noted that the mere reintroduction of border control at the internal borders of a Member State does not mean that an illegally staying third-country national apprehended in connection with the crossing of that border, or in the immediate vicinity thereof, may be removed more swiftly or more easily from the territory of the Schengen area by being returned immediately to an external border than if he had been apprehended in connection with a police check for the purpose of Article 23(a) of the Schengen Borders Code, in the same place, without border control having been reintroduced at those borders. Thus, the court held that in the light of the objective pursued by Article 2(2)(a) of the Returns Directive, there is no need to treat differently the situation of an illegally staying third-country national, apprehended in the immediate vicinity of an internal border, depending on whether or not border control has been reintroduced at that border.

Lastly, the court emphasized that, under the Schengen Borders Code, internal and external borders were mutually exclusive concepts. Agreeing with the Opinion of Advocate General Szpunar, the court highlighted that while Article 32 of the Code states that where border controls are reintroduced, only the relevant provisions relating to external borders apply, it does not provide that in such a case Article 2(2)(a) of the Returns Directive is to be applied. Thus, the court concluded that the very wording of the Schengen Borders Code precluded, for the purposes of that directive, an internal border at which border control has been reintroduced under Article 25 of the code from being equated with an external border.

Based on the above, the court concluded that Article 2(2)(a) of the Returns Directive read with Article 32 of the Schengen Borders Code, must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the code, on account of a serious threat to public policy or internal security in that Member State.

In view of the answer given, the court indicated that there was no need to answer the third question referred to.