Case C-329/11

Alexandre Achughbabian

v

Préfet du Val-de-Marne

(Reference for a preliminary ruling from the cour d'appel de Paris)

‛Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation making provision, in the event of illegal staying, for a sentence of imprisonment and a fine’

View of Advocate General Mazák delivered 26 October 2011 I - 12699

Judgment of the Court (Grand Chamber), 6 December 2011 I - 12709

Summary of the Judgment

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

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)

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)