When questioned by the Italian police in 2009 in Rosolina Mare, Md Sagor (“S”) a street vendor without a fixed abode, explained that he was born in Bangladesh on 10 October 1990 and that he entered Italy in March 2009. S never had a residence permit. He was summoned before the Rovigo District Court (Tribunale di Rovigo) for illegal entry and stay contrary to Italian law.
To summarise, under Italian law irregular stays are punishable by a fine which may in some circumstances be replaced by an order for expulsion or home detention (an obligation to remain in one’s own home, or any other private residence, or in a place of treatment, assistance or day-care, every Saturday and Sunday, the duration of the home detention may not be less than six days and may not exceed 45 days. The convicted person shall not be regarded as being in custody). The relevant provisions under Italian law are set out at paras 10 – 19 of the judgment of the Court of Justice of the European Union (“CJEU”).
The Italian court found that S’s illegal entry into Italy was not confirmed because his avoidance of border controls had not been established to the required legal standard.
However, the Italian court decided that S’s illegal stay was proven but it was uncertain whether punishing S within the meaning of national law was compatible with Directive 2008/115/EC (on common standards and procedures in Member States for returning illegally staying third-country nationals or “the return directive”). Consequently, the following questions were referred to the CJEU:
1. In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2 [Scope], 4 [More favourable provisions], 6 [Return decision], 7 [Voluntary departure] and 8 [Removal] of [Directive 2008/115] preclude the possibility that a third-country national who is considered by the Member State to be illegally staying there may be liable to a fine for which home detention is substituted by way of criminal-law sanction, solely as a consequence of that person’s illegal entry and stay, even before any failure to comply with a removal order issued by the administrative authorities?
2. In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 15 [Detention] and 16 [Conditions of detention] of the return directive preclude the possibility that, subsequent to the adoption of the directive, a Member State may enact legislation which provides that a third-country national who is considered by that Member State to be illegally staying there may be liable to a fine for which an enforceable order for expulsion with immediate effect is substituted by way of criminal-law sanction, without respecting the procedure and the rights of the foreign national laid down in the directive?
3. Does the principle of sincere cooperation established in Article 4(3) TEU preclude national rules adopted during the period prescribed for transposition of [that] directive in order to circumvent or, in any event, limit the scope of the directive, and what measures must the national court adopt in the event that it concludes that there was such an objective?
In answering the foregoing questions, the CJEU noted that the return directive is not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. Hence, it does not preclude the national law from categorising an illegal stay as an offence and mandating criminal sanctions to prevent and punish a violation. But national law must not impair the application – thus denying EU law of its efficacy – of the common standards and procedures established by that directive.
The CJEU rejected the Italian government’s stance that the questions referred were inadmissible (paras 28 & 29). The questions were admissible (para 30).
Upholding its case-law the CJEU said this:
31 Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. Therefore, that directive does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down criminal sanctions to deter and penalise such an infringement (Achughbabian, paragraph 28).
32 However, a Member State may not apply criminal law rules which are liable to undermine the application of the common standards and procedures established by Directive 2008/115 and thus to deprive it of its effectiveness (see Case C-61/11 PPU El Dridi  ECR I-0000, paragraph 55, and Achughbabian, paragraph 39).
33 The Court has already had occasion to state that those standards and procedures would be undermined if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution which could lead to a term of imprisonment during the course of the return procedure. Such a step would risk delaying the removal (see El Dridi, paragraph 59, and Achughbabian, paragraphs 37 to 39 and 45).
See post on El Dridi on the Migrants at Sea blog here.
Moreover, the CJEU (para 35) observed that the return measures were not delayed or impaired by a criminal prosecution like the one brought against Md Sagor. This was because Italian law allowed repatriation to be achieved despite a pending criminal prosecution, without that prosecution having come to an end.
Nor was the imposition of a fine liable to impede the implementation of the return procedure (para 36). The CJEU clarified that “the imposition of a fine does not in any way prevent a return decision from being made and implemented in full compliance with” the return directive. Likewise, a fine did not “undermine the [directive’s] common standards relating to deprivation of liberty.”
Equally, the option to replace the fine with an expulsion order accompanied by an entry ban as regards Italy, in situations where it was possible immediately to effect the return of the individual concerned, was also not contrary to the return directive (paras 37 – 38).
The CJEU (para 41) explained that “under Article 7(4) Member States were allowed to refrain from granting a period for voluntary departure, in particular where there is a risk that the person concerned may abscond in order to avoid the return procedure.” But an “assessment in that regard must be based on an individual examination of that person’s case.” Member States’ duty of loyalty and the requirements of effectiveness referred to in the directive meant that removal under Article 8 of the Directive ought to be undertaken “as soon as possible” (para 43).
In the event that a fine replaced a home detention order, the CJEU elaborated (para 44) that it was clear the detention order, imposed in the course of the return procedure, does not facilitate the achievement of the physical transportation of an illegally resident third-country national out of the Member State concerned: “Such an order does not therefore constitute a ‘measure’ or a ‘coercive measure’ within the meaning of Article 8 of Directive 2008/115 (see, by analogy, Achughbabian, paragraph 37).”
Rather, the home detention order may delay and impede measures such as deportation and forced return by air (para 45).
At para 47, the CJEU answered the first and second questions referred by explaining that Directive 2008/115 must be interpreted as:
- Not precluding Member State legislation, such as that at issue in the main proceedings, which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order, and
- Precluding Member State legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that the enforcement of that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.
The CJEU did not find it necessary to answer the third question referred. Instead, it held that it was for the Italian court to assess whether there exists in the national legislation a provision by virtue of which removal overrides enforcement of the home detention order (para 48).
As expressed in recital (26) of the Preamble, the United Kingdom does not partake in the adoption of Directive 2008/115 – which constitutes a development of provisions of the Schengen acquis – and is therefore not bound by it in its entirety or subject to its application. The extent of the UK’s participation in the Schengen acquis is contained in 2000/365/EC.
Not that it had much to do with EU law until this case arose, in Bangladesh “Md” is shorthand for Mohammed and “Sagor” means the sea or ocean. The deadline for transposing the return directive was 24 December 2010. Italy failed to meet the deadline but undertook urgent measures in June 2011 to implement Directive 2004/38/EC on the free movement of citizens of the Union and to transpose Directive 2008/115/EC on returning illegally staying third-country nationals (para 11).