CJEU - Case C-290/14, Skerdhan Celaj

The Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban.

Facts:

The case relates to an Albanian national who was sentenced to a term of imprisonment for attempted robbery carried out on Italian territory in 2012. He was subsequently issued with a removal order and a three year entry ban. He re-entered Italian territory after his departure. Pursuant to Article 13(13) of Legislative Decree no 286 of the Italian law, he was arrested for infringing his re-entry ban and criminal proceedings were brought against him to sentence him to eight months imprisonment. On behalf of Mr Celaj, it was submitted that the Return Directive precluded this legislation so his actions could not constitute a criminal offence.

The Tribunale di Firenze referred the following question to the CJEU for preliminary ruling:

Do the provisions of Directive 2008/115 preclude a Member State’s legislation which provides for the imposition of a sentence of imprisonment of up to four years on an illegally staying third-country national who, having been returned to his country of origin neither as a criminal law sanction nor as a consequence of a criminal law sanction, has re-entered the territory of the State in breach of a lawful re-entry ban but has not been the subject of the coercive measures provided for by Article 8 of Directive 2008/115 with a view to his swift and effective removal?

Decision & Reasoning:

The CJEU firstly noted that the Return Directive is directed solely at the return of illegally staying third-country nationals, and was not designed to harmonise all Member States rules on the stay of foreign nationals. Thus it did not preclude Member States from classifying unlawful re-entry as an offence, with criminal law sanctions. However the Court highlighted that Member States may not apply criminal law rules which are liable to jeopardise the attainment of the objectives pursued by the RD. Nonetheless in accordance with Article 11 (1) MS may provide a return decision along with an entry ban, therefore there was in principle nothing in the RD which prevented a MS from imposing criminal law sanctions for the unlawful re-entry of a Third Country National.

The Court goes onto make a distinction between its previous case law and the current facts of the case. The situation at present related to criminal sanctions following return and re-entry, rather than prior to implementation of a first return decision, which could delay removal therefore jeopardising the aims of the Directive. As such it was distinguished from the cases of El Dridi (C-61/11) and Achughbabian (C-329/11) in which the individuals concerned were subject to a first return procedure, which had already applied the return procedure established in the Directive. Moreover the Court refers to the latter case to confirm that the Return Directive does not prevent the imposition of penal sanctions “to whom the return procedure established by that directive has been applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return.”

The Court concluded that the Return Directive did not in principle preclude domestic legislation which provides for a prison sentence on an illegally staying third-country national who unlawfully re-enter the Member States in breach of an entry ban issued against them in the context of an earlier return procedure. However, the imposition of such a criminal law sanction should be subject to full observance of Article 11 of the RD and fundamental rights, particularly those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Geneva Convention.

Outcome:

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 not, in principle, precluding legislation of a Member State which provides for the imposition of a prison sentence on an illegally staying third-country national who, after having been returned to his country of origin in the context of an earlier return procedure, unlawfully re-enters the territory of that State in breach of an entry ban.

Observations/Comments:

The judgment in this case is in opposition with the Opinion of Advocate General Szpunar who submitted that the imprisonment of a person ultimately delays a future return. According to the AG the Directive should therefore be interpreted as precluding a Member State from imprisoning a third-country national solely on the basis of that person re-entering the territory of that Member State in defiance of an entry ban that had been issued with a return decision under the Directive.

For further analysis of the case please see: The CJEU’s Ruling in Celaj: Criminal penalties, entry bans and the Returns Directive, Izabella Majcher

Case Law Cited:

CJEU - C-61/11, PPU El Dridi

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

CJEU - C-430/11 Sagor

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