CJEU - C-225/16, Ouhrami

The CJEU ruled that the period of application of an entry ban under the Return Directive begins to run from the date on which the person concerned has actually left the territory of the Member States.

Facts:

The proceedings concerned Mr Ouhrami, who was declared “undesirable” in the Netherlands on 2002 after multiple criminal sanctions including a 13-month imprisonment for aggravated theft, handling stolen property and possession of hard drugs. He was considered a threat to public policy and was under an obligation to leave the country, failing which he could be removed, and to remain outside the Netherlands for 10 consecutive years. That decision became final on 15 May 2003.

However, Mr Ouhrami did not leave the Netherlands. In 2012, he was sentenced to a term of imprisonment, which he appealed on the ground that the return procedure laid down in the Return Directive had not been exhausted. The Court of Appeal of Amsterdam ruled that the competent authorities had made adequate efforts to establish Mr Ouhrami’s identity and have him returned, thus the return procedure had to be regarded as exhausted. The Court sentenced Mr Ouhrami’s to a prison term of two months. He appealed against that ruling to the Supreme Court of the Netherlands, arguing that the decision that declared him undesirable ceased to produce legal effects since it had to be regarded as equivalent to an entry ban (which, under the Return Directive, could not exceed five years).

The Supreme Court of the Netherlands decided to stay the proceedings and asked the CJEU for a preliminary ruling regarding: (1) the date from which the period of an entry ban should be calculated (i.e. the date of issue of the decision, date on which the person left the territory of the Member States, or any other date), and (2) if decisions taken before the Return Directive entered into force ceased to have any legal effect if the duration of an entry ban is exceeded at the time by which the Directive had to be transposed.

Decision & Reasoning:

With regard to the first question, the CJEU disagreed with the submissions of the Danish Government that the determination of the starting point of the entry ban period should be left to the discretion of each Member State. According to the Court, this would run counter to the purpose of giving an European dimension to the effects of national return measures.

With reference to the wording, general scheme and objectives of the Return Directive, the Court put forward that issuing a return decision, on the one hand, and an entry ban, on the other hand, must be regarded as separate decisions. In this manner, until the point in time at which the return is voluntarily complied with or enforced, the illegal stay of the person concerned is governed by the return decision and not by the entry ban. It is only when the person concerned has actually left the territory of the Member States that the entry ban period must begin to run. If that period were to start running before the day the person concerned has actually left the territory of the Member States, a third-country national who refuses to comply with the obligation to return and to cooperate in a removal procedure would be able to avoid, in whole or in part, the legal effects of an entry ban.

While the Court reiterated that a Member State may not impose criminal sanctions for breach of an entry ban coming within the scope of the Return Directive unless the continuation of the effects of that ban complies with Article 11 of that Directive (see C-290/14 Celaj and C-297/12 Filev and Osmani), in the case of Ouhrami the obligation to return was never fulfilled. Therefore, his unlawful situation was a consequence of an initial illegal stay, and not of a subsequent illegal stay resulting from breaching an entry ban.

The CJEU did not proceed with answering the second question as this was only posed in case the starting point of the duration of an entry ban should be anything other than the day the person has actually left the territory of the Member States.

Outcome:

Article 11(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that the starting point of the duration of an entry ban, as referred to in that provision, which in principle may not exceed five years, must be calculated from the date on which the person concerned actually left the territory of the Member States.

Observations/Comments:

The findings were broadly in line with the Opinion of AG Sharpston.

Case Law Cited:

CJEU - C-66/08, Koslowski

C-297/12 - Filev and Osmani, 19 September 2013

CJEU - Case C-290/14, Skerdhan Celaj

CJEU - Case C‑47/15, Sélina Affum v Préfet du Pas-de-Calais, Procureur général de la cour d’appel de Douai

CJEU - C-329/11 Achughbabian Alexandre Achughbabian v Préfet du Val-de-Marne

Authentic Language:

English

Country of preliminary reference:

Netherlands