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Home ›CJEU Judgment in Case C-430/11, Md Sagor, 6 December 2012
(Reference for a preliminary ruling - Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - National legislation providing for a fine which may be replaced by an order for expulsion or home detention)
Referred Questions
In the light of the principles of sincere cooperation and the effectiveness of directives,
-do Articles 2, 4, 6, 7 and 8 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 a 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?
-do Articles 2, 15 and 16 of [Directive 2008/115] 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 a criminal-law sanction, without respecting the procedure and the rights of the foreign national laid down in the Directive?
The questions referred for a preliminary ruling
The Directive on common standards and procedures in Member States for returning illegally staying third country nationals does not preclude national legislation which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order. The Directive does not preclude the possibility of classifying an illegal stay as an offence and laying down criminal sanctions to penalise it, as long as this does not lead to a delay or otherwise obstacle to the removal. Moreover, the possibility that a criminal prosecution may lead to a fine is also not liable to impede the return procedure established by Directive 2008/115, as it does not prevent a return decision from being made and implemented in full accordance with it. Finally, the Directive does not preclude the decision imposing the obligation to return from being taken in the form of a criminal judgment.
On the contrary, the Directive precludes 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 enforcement of a home detention order during the course of the return procedure does not contribute to the promptest execution of the removal established by Article 8 of the Directive. A home detention order is liable to delay and impede the measures through which removal is carried out and thus to undermine the return procedure, in particular where national legislation does not provide that the enforcement home detention order must come to an end as soon as it is possible to effect the person's removal.
For the full judgment please visit the website of the Court of Justice of the European Union.
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