EU member states should not be able to imprison non-EU nationals simply because they illegally entered the country, an advisor to the bloc's top court said Tuesday, in a case regarding a Ghanaian woman apprehended in France.
The European Union has been grappling with an influx of migrants and asylum seekers since last year. Many member states are now seeking to crack down on economic migrants, who have no right to stay, in order to better manage those deserving of international protection.
The case before the European Court of Justice (ECJ) predates last year's migration surge, but could have a bearing on decisions taken in response to the high number of arrivals.
In March 2013, Selina Affum of Ghana was stopped by French police in Calais, at the Channel Tunnel crossing to Britain, on board a coach travelling from the Belgian city of Ghent to London.
France and Belgium are both in the Schengen border-free zone, where people can move between countries without having their passports checked, but Britain is not.
Affum was travelling on a passport bearing another person's name and photo. She was placed into custody for illegally entering France, and was then kept in detention pending her return to Belgium, according to the ECJ.
Affum challenged her treatment, and the French court handling her case turned to the EU's top court for advice on the legality of her imprisonment.
Advocate General Maciej Szpunar found Tuesday that EU rules only allow the imprisonment of non-EU nationals if they stay on despite a decision to send them back to their country of origin, or if they breach a ban on re-entering the member state.
Neither case applies to Affum, the court advisor argued.
Szpunar is one of 10 advocates general who provide legal opinions to the Luxembourg-based court. The judges generally follow their advice.
A final ruling by the court is likely to take several more months.