Personal Immigration

Court of Justice rules on the 'return directive'

The Court of Justice of the European Union has ruled in a case involving the ‘return directive’, which establishes common standards and procedures applicable in Member States for removing illegally staying third-country nationals from their territory.

The directive provides for the adoption, in respect of any illegally staying third-country national, of a return decision which, in principle, opens a period for voluntary return, followed, if necessary, by forced removal measures.

If there is no voluntary departure, the directive requires Member States to carry out forced removal using the least coercive measures possible. It is only if there is a risk of the removal being compromised that the Member State may place the person concerned in detention, the duration of which may in any case not exceed 18 months.

The Court of Justice case concerned an Armenian national, who entered France in 2008. He was the subject of a prefectoral decision, in 2009, requiring him to leave French territory and setting a one-month deadline for voluntary departure. Following his refusal to leave France, a new return decision was adopted in June 2011, in the form of a deportation order not accompanied by a time-limit for voluntary departure. In addition, the French authorities ordered his placing in police custody and then detention for illegal staying, measures which he challenged before the French courts.

The Cour d’appel de Paris (France), which is currently hearing the dispute, asked the Court of Justice whether the 'return directive' precludes French legislation which punishes a third-country national who stays illegally in France, beyond three months, without the required documents and visas, particularly a residence permit, by a one-year sentence of imprisonment and a fine of €3,750.

The Court of Justice ruled that the ‘return directive’ precludes national legislation imposing a prison sentence on an illegally staying third-country national during the return procedure. That directive does not preclude criminal penalties being imposed in accordance with national rules and in compliance with fundamental rights on third-country nationals to whom the said procedure has been applied and who are staying illegally with no justified ground for non-return.

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