View of the Advocate General — ECLI:EU:C:2011:694
Date: 2011-10-26
Language of the case: French
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Border controls, asylum and immigration – Immigration policy – Returning of illegally staying third-country nationals – Directive 2008/115 – Subject-matter – Full harmonisation of national rules on the stay of third-country nationals – Not included (European Parliament and Council Directive 2008/115) 2. Border controls, asylum and immigration – Immigration policy – Returning of illegally staying third-country nationals – Third-country national subject to a return procedure within the meaning of Directive 2008/115 – National legislation punishing an illegal stay with a sentence of imprisonment – Not permissible (European Parliament and Council Directive 2008/115, Art. 8) 3. Border controls, asylum and immigration – Immigration policy – Returning of illegally staying third-country nationals – Third-country national having undergone a return procedure within the meaning of Directive 2008/115 – National legislation punishing an illegal stay with a sentence of imprisonment when the return procedure is unsuccessful – Whether permissible – Conditions – Observance of fundamental rights (European Parliament and Council Directive 2008/115) 1. Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals concerns only the return of illegally staying third-country nationals in a Member State and, in particular, the adoption of return decisions and the implementation of those decisions. It is therefore not intended to harmonise in their entirety the national rules on the stay of third-country nationals. Consequently, that directive does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down penal sanctions to deter and prevent such an infringement of the national rules on residence. Nor does it preclude a third-country national’s being held in detention with a view to determining whether or not his stay is lawful. The objective of Directive 2008/115, namely, the effective return of illegally-staying third-country nationals, would be compromised if it were impossible for Member States to prevent, by deprivation of liberty such as police custody, a person suspected of staying illegally from fleeing before his situation could even be clarified. (see paras 28-30) 2. Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding legislation of a Member State laying down criminal penalties for illegal stays, in so far as that legislation permits the imprisonment of a third-country national who, though staying illegally in the territory of that Member State and not being willing to leave that territory voluntarily, has not been subject to the coercive measures referred to in Article 8 of that directive and has not, being placed in detention with a view to the preparation and carrying out of his removal, yet reached the end of the maximum term of that detention. The imposition and enforcement of a sentence of imprisonment during the course of the return procedure provided for by Directive 2008/115 do not contribute to the carrying through of the removal which that procedure is intended to achieve, namely, the physical transportation of the person concerned out of the Member State concerned. Such a sentence does not therefore constitute a ‘measure’ or a ‘coercive measure’ within the meaning of Article 8 of that directive. (see paras 37, 50, operative part) 3. Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not precluding legislation of a Member State imposing criminal penalties for illegal stays, in so far as the latter permits the imprisonment of a third-country national to whom the return procedure established by that directive has been applied and who is staying illegally in that territory with no justified ground for non-return. Although the Member States bound by Directive 2008/115 may not provide for a term of imprisonment for illegally-staying third-country nationals in situations in which the latter must, by virtue of the common standards and procedures established by that directive, be removed and may, with a view to the preparation and carrying out of that removal, at the very most be ordered to be detained, that does not exclude the right of the Member States to adopt or maintain provisions, which may be of a criminal nature, governing, in accordance with the principles of that directive and its objective, the situation in which coercive measures have not made it possible for the removal of an illegally staying third-country national to be effected. In that regard, in the context of the application of national rules of criminal procedure, the imposition of criminal penalties is subject to full observance of fundamental rights, particularly those guaranteed by the European Convention on Human Rights. (see paras 46, 49-50, operative part)