Sélina Affum v Préfet du Pas-de-Calais and Procureur général de la Cour d'appel de Douai.
Date: 2016-06-07
48


It follows from that definition that any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence there is, by virtue of that fact alone, staying there illegally, without such presence being subject to a condition requiring a minimum duration or an intention to remain on that territory. Nor is the fact that such presence is merely temporary or by way of transit among the grounds, listed in Article 2(2) of Directive 2008/115, on which Member States may decide to exclude an illegally staying third-country national from the directive’s scope.
52


In that judgment, the Court ruled that Directive 2008/115 precludes 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 on 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 the directive and has not, if 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 (judgment of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraph 50).
53


However, the Court explained that Directive 2008/115 does not does not preclude a third-country national being placed in administrative detention with a view to determining whether or not his stay is legal. In that regard, the competent authorities are required to act with diligence and take a position without delay on the legality of the stay of the person concerned (see, to this effect, judgment of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 29 to 31).
54


The Court also explained that Directive 2008/115 likewise does not preclude national legislation which permits the imprisonment of a third-country national to whom the return procedure established by the directive has been applied and who is staying illegally on the territory of the Member State without a justified ground for non-return (judgment of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraph 50).
55


In particular, the Court observed that national legislation such as Article L.621-1 of Ceseda in the version prior to its amendment by the Law of 31 December 2012, which that judgment concerned and which provided for a term of imprisonment for any third-country national ‘who has entered or resided in France without [holding the documents and visas required for entry and, in the event of a stay exceeding three months, a residence permit,] or who has remained in France beyond the period authorised by his visa’, 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 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 (see judgment of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 10, 11, 14 and 38).
59


It follows both from the definition of the concept of ‘illegal stay’, set out in Article 3(2) of Directive 2008/115 and recalled in paragraph 47 of the present judgment, and from recital 5 of the directive, according to which the directive applies ‘to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence’, that a third-country national who, after entering the territory of a Member State illegally, is present on that territory without fulfilling the conditions for entry, stay or residence is, on that basis, staying there illegally.
60


Thus, in the context of Directive 2008/115 the concepts of ‘illegal stay’ and ‘illegal entry’ are closely linked, as such entry is one of the factual circumstances that may result in the third-country national’s stay on the territory of the Member State concerned being illegal.
61


Since third-country nationals who, like Ms Affum, have entered the territory of a Member State illegally and who, on that basis, are regarded as staying there illegally therefore fall, under Article 2(1) of Directive 2008/115, and without prejudice to Article 2(2), within the directive’s scope, they must be subject to the common standards and procedures laid down by the directive for the purpose of their removal, as long as their stay has not, as the case may be, been regularised.
62


By virtue of those standards and procedures, such a third-country national must be the subject of a return procedure, the order of whose stages corresponds to a gradation of the measures to be taken in order to enforce the return decision and which permits, so far as concerns deprivation of liberty, at the very most detention in a specialised facility, a measure which is, however, strictly regulated, pursuant to Articles 15 and 16 of Directive 2008/115, in order to ensure observance of the fundamental rights of the third-country nationals concerned (see, in particular, judgment of 28 April 2011 in El Dridi, C‑61/11 PPU, EU:C:2011:268, paragraphs 41 and 42).
64


Such a situation can thus be clearly distinguished from the situation at issue in the case giving rise to the judgment of 1 October 2015 in Celaj (C‑290/14, EU:C:2015:640), in which an illegally staying third-country national to whom the common standards and procedures established by Directive 2008/115 were applied in order to end his first illegal stay on the territory of a Member State re-entered the territory of that Member State in breach of an entry ban.
65


Finally, it must be made clear that Directive 2008/115 does not prevent the Member States from being able to impose a sentence of imprisonment to punish the commission of offences other than those stemming from the mere fact of illegal entry, including in situations where the return procedure has not yet been completed.
69


It is clear from that provision that the two situations covered by it relate exclusively to the crossing of a Member State’s external border, as defined in Article 2(2) of the Schengen Borders Code, and therefore do not concern the crossing of a common border of Member States forming part of the Schengen area. That provision thus cannot permit the Member States to exclude certain illegally staying third-country nationals from the directive’s scope on the ground of illegal entry across an internal border.
72


Finally, still in relation to that second situation, Article 2(2)(a) of Directive 2008/115 specifies that the apprehension or interception of the third-country nationals concerned must take place ‘in connection with the irregular crossing’ of an external border, which, as Ms Affum, the Greek Government and the Commission submit in essence, and as the Advocate General has observed in point 41 of his Opinion, implies a direct temporal and spatial link with that crossing of the border. That situation therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed.
74


The fact that Article 4(4) of Directive 2008/115 thus regulates in detail the exercise by the Member States of the power provided for in Article 2(2)(a) of the directive can be explained, as the Commission set out at the hearing, by the purpose of Article 2(2)(a), as apparent from the directive’s history, of permitting the Member States to continue to apply simplified national return procedures at their external borders, without having to follow all the procedural stages prescribed by the directive, in order to be able to remove more swiftly third-country nationals intercepted when crossing those borders. Article 4(4) of Directive 2008/115 is intended in that context to ensure that those simplified national procedures observe the minimum guarantees prescribed by the directive, which include, in particular, the detention conditions laid down in Articles 16 and 17.
77


As regards Article L. 621-2(2) of Ceseda, as amended by the Law of 31 December 2012, which provides for a sentence of imprisonment where a third-country national enters French territory illegally by crossing an internal border, it should be recalled that, as has been pointed out in paragraph 69 of the present judgment, Article 2(2)(a) of Directive 2008/115 cannot permit the Member States to exclude certain illegally staying third-country nationals from the directive’s scope on the ground of illegal entry across an internal border.
87


Since that decision to transfer the third-country national constitutes one of the measures provided for by Directive 2008/115 in order to bring his illegal stay to an end and a stage preparatory to his removal from the territory of the European Union, the Member State concerned must, in the light of the directive’s objectives, adopt that decision with diligence and speedily so that he is transferred as soon as possible to the Member State responsible for the return procedure (see, to this effect, judgments of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 31 and 45, and of 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 76).
90


First, that provision does not require the Member States to introduce sentences of imprisonment for the situations which it covers, but lets them choose the penalties that they wish to adopt, provided that those penalties are effective, proportionate and dissuasive. Therefore, even in the situations for which Article 4(3) of the Schengen Borders Code lays down an obligation to introduce penalties, the Member States may comply with that obligation while observing at the same time the obligations stemming from Directive 2008/115. The fact that Article 4(3) of the Schengen Borders Code is not in any way intended to derogate from the common standards and procedures established by that directive is, moreover, expressly confirmed in Article 12(1) of the Schengen Borders Code as amended by Regulation No 610/2013.