The EU’s highest court on Tuesday inflicted a major blow on attempts to stop illegal immigrants trying to sneak into Britain.
In an extraordinary ruling, the European Court of Justice (ECJ) blasted France for imprisoning a refugee caught with a stolen passport at the entrance to the Channel Tunnel.
It said the authorities were “not permitted” to lock up Ghanaian Selina Affum.
Instead, she should have been released - giving her the chance to disappear and try again.
The ruling effectively means France cannot detain illegal immigrants when it catches them trying to sneak into Britain.
Critics said the controversial judgment would potentially encourage thousands of people from outside Europe who want to slip into the UK unlawfully.
The ruling is another headache for David Cameron, who has faced criticism over his record on immigration during the referendum debate.
Figures have shown that EU immigration is running at record levels, while a series of incidents have highlighted how people smugglers are exploiting Britain’s porous borders.
In April, the EU’s own border agency admitted the number of migrants aiming to get to the UK with fraudulent documents increased last year by 70 percent compared to 2014.
Miss Affum was held by French police at the Channel Tunnel entrance on a coach travelling from Ghent in Belgium to London in 2013.
She had a false Belgian passport but possessed no other travel documents.
She was placed in police custody and held in jail while officials waited to return her to Belgium.
Under French law, illegal entry is punishable with up to a year in prison.
But the ECJ – which rules on issues of European Union law – said France had no right to detain her under EU rules.
EU directives only allow imprisonment of illegal immigrants if they have already been booted out and are attempting to re-enter a country, or have committed another crime. Imprisoning Miss Affum also breached a Brussels diktat called the Return Directive.
This gives illegal immigrants the chance to voluntarily go home within 30 days if they are caught.
They should not be detained while deportation proceedings are processed, unless they are at risk of absconding or resist moves to kick them out. The directive does not apply to Britain, as we are not a member of Europe’s passport-free Schengen zone. But many migrants who reach the continent hope to travel to the UK.
Last night, the ECJ judgement was seized on by Leave campaigners as a damning example of how the so-called “rogue” European Court was a threat to Britain’s borders.
Justice minister Dominic Raab said: “This ruling threatens the integrity of our borders, and create serious risks for security.
“The ruling increases the risk that illegal immigrants will be able to enter the UK, as it weakens the ability of other EU governments to put in place proper checks. The EU is not fit for purpose, and the only way to take back control is to vote to Leave.”
And Alp Mehmet, of the think-tank Migrationwatch, which campaigns for tighter borders, said: “This can only add to the problems that we face in Calais and elsewhere. The judgement seems to be paying scant attention to what is happening in the real world and how we should deal with today’s rapidly changing circumstances.”
But Labour MP Emma Reynolds, of Britain Stronger In Europe, said: “The Leave campaign know perfectly well that this ruling does not apply to the UK because we are exempt from this directive. Leaving the EU will make it harder to work with other countries to keep our border secure.”