CJEU: Judgment on the interpretation of Article 11 of the Return Directive

Thursday, September 17, 2020

On 17 September, the CJEU answered a preliminary question from the Supreme Court of the Netherlands regarding the interpretation of Article 11 of the Return Directive (Directive 2008/115/EC).

In 2013, JZ, an alleged Algerian national, saw his initial declaration of undesirability lifted and replaced by an order to leave the Netherlands that included a 5-year entry ban based on several criminal convictions. Two years later, the authorities discovered that JZ had violated that order by residing in Amsterdam, for which he was sentenced to two months of imprisonment. Following an appeal against this decision, the referring court asked the CJEU whether Article 11 of the Return Directive precludes legislation that imposes a term of imprisonment on illegally staying third-country nationals who have not actually left the territory, despite an exhausted return procedure, but who are convicted because of an unlawful stay with notice of an entry ban.  

While the CJEU considered the Return Directive’s goal of an effective common return policy without excluding the Member States’ competence to lay down criminal sanctions to deter and penalize infringements, it underlined that Member States cannot jeopardize the objectives pursued by the Directive. Member States can only lay down criminal penalties for illegal stays in so far as the return procedure has been exhausted and the individual is still staying illegally on the territory of a Member State without a justified ground for non-return (Achughbabian). Furthermore, the CJEU underlined that an entry ban only produces its effects from the point in time at which an individual leaves the territory of the Member States (Ouhrami). Therefore, if the illegally staying third country national has not left the territory, he can only be punished on the basis of an initial illegal stay, governed by a return or removal decision, and not for breaching an entry ban, since no entry ban has been breached.

Based on these considerations, the CJEU concludes that EU law does not preclude Member States from imposing a custodial sentence on third-country nationals who have been subject to a return procedure and who continue to reside illegally on the territory of the Member State, and, a fortiori, to impose a sentence on those illegally residing nationals who have a criminal record or represent a threat to public policy or national security. Article 11 of the Return Directive does not preclude national law that regards a third-country national’s illegal stay in the Member State as a criminal act, where the individual knows that an entry ban has been issued to him on account of such an act or threat. However, Member States cannot qualify the breaching of an entry ban as a criminal act, if that entry ban has not produced its effects. Finally, the Court underlines that national criminal legislation regarding the unlawful stay of third country nationals must be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness and, ultimately, leaves it to the referring court to assess if the Dutch legislation at stake complies with these conditions.

Photo: triin, May 2007, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Residence document