Alexandre Achughbabian v Préfet du Val-de-Marne.
Date: 2011-12-06
10. According to Article L. 211-1 of the code de l’entrée et du séjour des étrangers et du droit d’asile français (‘Ceseda’), ‘in order to enter France, any foreign national must hold … the documents and visas required by the international conventions and the regulations in force …’.
11. According to Article L-311-1 of that code, ‘any foreign national aged over 18 years wishing to stay in France must, after the expiry of a period of three months from his entry into France, hold a residence permit’.
14. Article L. 621-1 of Ceseda provides:
‘A foreign national who has entered or resided in France without complying with the provisions of Articles L. 211-1 and L. 311-1 or who has remained in France beyond the period authorised by his visa commits an offence punishable by one year’s imprisonment and a fine of EUR 3 750.
The court may, further, prohibit a convicted foreign national, for a period which may not exceed three years, from entering or residing in France.  Prohibition from the territory automatically entails deportation, where appropriate at the expiry of the term of imprisonment.’
28. It should be noted at the outset that Directive 2008/115 concerns only the return of illegally staying third-country nationals in a Member State and is thus not designed to harmonise in their entirety the national rules on the stay of foreign nationals.  Therefore, 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.
29. Since the common standards and procedures established by Directive 2008/115 concern only the adoption of return decisions and the implementation of those decisions, it should also be pointed out that that directive does not preclude a third-country national being placed in detention with a view to determining whether or not his stay is lawful.
30. That finding is corroborated by recital 17 of that directive, from which it is apparent that the conditions for the initial arrest of third-country nationals suspected of staying in a Member State illegally remain governed by national law. Moreover, as the French Government has observed, 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.
31. It should be held, in that regard, that the competent authorities must have a brief but reasonable time to identify the person under constraint and to research the information enabling it to be determined whether that person is an illegally-staying third-country national. Determination of the name and nationality may prove difficult where the person concerned does not cooperate.  Verification of the existence of an illegal stay may likewise prove complicated, particularly where the person concerned invokes a status of asylum seeker or refugee.  That being so, the competent authorities are required, in order to prevent the objective of Directive 2008/115, as stated in the paragraph above, from being undermined, to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned.  Once it has been established that the stay is illegal, the said authorities must, pursuant to Article 6(1) of the said directive and without prejudice to the exceptions laid down by the latter, adopt a return decision.
33. In that respect, the Court has already held that whilst, in principle, criminal legislation and the rules of criminal procedure fall within the competence of the Member States, this area of law may nevertheless be affected by EU law.  Therefore, notwithstanding the fact that neither point (3)(b) of the first paragraph of Article 63 EC, a provision which was reproduced in Article 79(2)(c) TFEU, nor Directive 2008/115, adopted inter alia on the basis of that provision of the EC Treaty, precludes the Member States from having competence in criminal matters in the area of illegal immigration and illegal stays, they must adjust their legislation in that area in order to ensure compliance with EU law.  Those States cannot apply criminal legislation capable of imperilling the realisation of the aims pursued by the said directive, thus depriving it of its effectiveness ( El Dridi , paragraphs 53 to 55 and case-law cited).
35. It is apparent from the documents before the Court and from the reply given by the referring court to a request for clarification from the Court of Justice that an order to leave French territory, setting a period of one month for a voluntary departure, was served on Mr Achughbabian on 14 February 2009, and that the latter did not comply with that order. As that return decision was no longer operative on 24 June 2011, the date on which Mr Achughbabian was apprehended and placed in police custody, a fresh return decision was adopted on 25 June 2011, this time taking the form of a deportation order, not accompanied by a period for voluntary departure.  It follows that, independently of the question whether the situation of the applicant in the main proceedings must be regarded as that of a person who has not complied with a return obligation in the time-limit granted for a voluntary departure or as that of a person subject to a return decision without the fixing of a time-limit for a voluntary departure, the said situation is in any event covered by Article 8(1) of Directive 2008/115 and thus gives rise to the obligation imposed by that article on the Member State concerned to take all measures necessary to carry out removal, namely, pursuant to Article 3, point 5, of the said directive, the physical transportation of the person concerned out of the said Member State.
37. Clearly, 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 Directive 2008/115.
38. Finally, it is undisputed that the national legislation at issue in the main proceedings, in that it provides for a term of imprisonment for any third-country national aged over 18 years who stays in France illegally after the expiry of a period of three months from his entry into French territory, is capable of leading to imprisonment whereas, following the common standards and procedures set out in Articles 6, 8, 15 and 16 of Directive 2008/115, such a third-country national must, as a matter of priority, be made the subject-matter of a return procedure and may, as regards deprivation of liberty, at the very most be ordered to be detained.
39. National legislation such as that at issue in the main proceedings is, consequently, likely to thwart the application of the common standards and procedures established by Directive 2008/115 and delay the return, thereby, like the legislation at issue in El Dridi , undermining the effectiveness of the said directive.
41. In that respect, it is important to note at the outset that third-country nationals who, in addition to staying illegally, have also committed one or more other offences may in certain cases, under Article 2(2)(b) of Directive 2008/115, be removed from the scope of the latter.  However, there is nothing in the evidence before the Court to suggest that Mr Achughbabian has committed any offence other than that consisting in staying illegally on French territory.  The situation of the applicant in the main proceedings cannot therefore be removed from the scope of Directive 2008/115, as Article 2(2)(b) of the latter clearly cannot, without depriving that directive of its purpose and binding effect, be interpreted as making it lawful for Member States not to apply the common standards and procedures set out by the said directive to third-country nationals who have committed only the offence of illegal staying.
42. As regards the fact that Mr Achughbabian has, hitherto, not been sentenced to the penalties of imprisonment and fine laid down by Article L. 621-1 of Ceseda, it should be noted that the adoption against him of a deportation order has undeniably been based on the finding of the offence of illegal staying provided for by that article, and that the latter is, whatever the content of the circulars mentioned by the French Government, capable of leading to a sentence to the said penalties.  Consequently, Article L. 621-1 of Ceseda, and the question of its compatibility with EU law, are relevant in the file of the applicant in the case in the main proceedings, the referring court and the French Government having moreover mentioned neither a withdrawal of proceedings nor, more generally, any decision definitively excluding the possibility of prosecution against Mr Achughbabian for the said offence.
43. Moreover, and analogously with what has been stated in paragraph 33 of this judgment, this Court emphasises the duty of the Member States, following from Article 4(3) TEU and referred to in paragraph 56 of the judgment in El Dridi , to take any appropriate measure to ensure fulfilment of the obligations arising from Directive 2008/115 and to refrain from any measure which could jeopardise the attainment of the objectives of the latter.  It is important that the national provisions applicable must not be capable of compromising the proper application of the common standards and procedures introduced by the said directive.
45. It is sufficient to note in that respect that it follows both from the duty of loyalty of the Member States and the requirements of effectiveness referred to, for example, in recital 4 of Directive 2008/115, that the obligation imposed on the Member States by Article 8 of that directive, in the cases set out in Article 8(1), to carry out the removal, must be fulfilled as soon as possible.  That would clearly not be the case if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution followed, in appropriate cases, by a term of imprisonment. Such a step would delay the removal ( El Dridi , paragraph 59) and does not, moreover, appear amongst the justifications for a postponement of removal referred to in Article 9 of Directive 2008/115.
46. Whilst it is apparent from the above considerations as a whole that Member States bound by Directive 2008/115 cannot 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 ( El Dridi , paragraphs 52 and 60).
48. In particular, Directive 2008/115 does not preclude penal sanctions being imposed, following national rules of criminal procedure, on third-country nationals 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.
49. In that regard, it should be emphasised that, in the context of the application of the said rules of criminal procedure, the imposition of the sanctions mentioned in the previous paragraph is subject to full observance of fundamental rights, particularly those guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950.
50. In the light of all the foregoing, the answer to the question is that Directive 2008/115 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 the said 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; and
– not precluding such legislation in so far as the latter permits the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in that territory with no justified ground for non-return.
Costs