Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.

The first case was decided by the ECJ even before the deadline to transpose the directive had expired (Kadzoev, case C‑357/09 PPU) and dealt with the issue of pre-removal detention.
The case regarded an irregular immigrant who had been detained for removal by the Bulgarian authorities for a protracted period of time, and whose removal appeared impossible to achieve given the fact that the Russian Federation did not recognize his documents (issued by the Chechen Republic of Ichkeria) and was not willing to accept his repatriation. In this first case, the ECJ clarified that pre-removal detention may not be extended after expiration of its maximum length and that it ceases to be justified when it appears that a reasonable prospect of removal no longer exists. As scholars immediately pointed out, however, while this decision clearly required immediate liberation of Mr. Kadzoev, the legal framework of EU law on irregular immigration did not answer the question of his legal status: EU law does not require Bulgaria to issue him even temporary documents recognizing his position, and less so to regularize it.

The second case in which the ECJ had to examine the Returns Directive concerned its relationship with national criminal legislation (El Dridi, Case C-61/11 PPU).
The case was referred by an Italian criminal judge (indeed, Italian judges inundated the ECJ with a deluge of at least 13 references for preliminary rulings on the matter) and concerned the compatibility with EU law of provisions criminalizing non-compliance with a decree ordering voluntary departure.
The Court, after finding that the Directive had not been transposed into Italian law, examined the issue and decided it in application of the principle according to which States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a directive, depriving it of its effectiveness.
In the Court’s view, the Directive does not allow for the application of criminal imprisonment in the course of the returns procedure: once the returns procedure begins, States may not interrupt it, but they must pursue their efforts to enforce the decision.
However, the judgment, while clarifying the measures which may, and may not, be taken in the course of the returns procedure, did not decide the (preliminary) question of when the returns procedure begins. It is this issue, among others, that has finally been decided in the most recent case concerning the returns directive.

The Achughbabian case (C-329/11) originates from a reference for a preliminary ruling issued by a French judge.
While Italian judges had questioned the compatibility of domestic criminal legislation with the directive since its entry into force, their French colleagues became aware of the similar problems arising from national criminal law only as a consequence of the El Dridi judgment.
In particular, in the case giving rise to the ECJ’s decision, the question at stake was whether irregular immigrants could be subjected to garde à vue (police custody), since this measure, according to the French code of criminal procedure, may only be applied to persons who are suspected of having committed a crime punishable by imprisonment. However, the judgment in the El Dridi case seemed to suggest that irregular immigration may not be criminalized, since irregularly staying third-country nationals are to be expelled; thus, the provision of French criminal law sanctioning irregular immigration appeared to be at least questionable.
The French judge asked the ECJ whether the directive precludes “national legislation which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory.” In the course of the proceedings, moreover, the German and Estonian Governments had intervened, arguing that, while the Directive prevents States from imposing a term of imprisonment during the removal procedure, it does not prevent them from sentencing an illegal third-country national to a term of imprisonment before carrying out the removal of that person; the question thus became when the return procedure begins.

In its judgment, the ECJ firstly recognized two very clear general principles: member states may criminalize illegal entry or stay, and they may place third-country nationals in detention in order to determine whether their stay is lawful. Such clear statements, however, are followed by much more nuanced conclusions.
The Court has clarified the chronological order in which the different stages of the return procedure must take place: accordingly, States cannot delay the application of the return directive by subjecting irregular immigrants to a custodial sentence and postponing the adoption of the return decision.
Once an irregular immigrant is identified as such (if necessary, while held under temporary arrest), the State must immediately issue a return decision and therefore begin the procedure which should lead to the person’s return.

Thus, if the Court has expressly declared that criminal provisions punishing irregular immigrants are not incompatible with the directive, it has subjected them to a number of limitations and conditions, with the effect of severely limiting their possible scope of application. Indeed, such criminal provisions may be applied neither before (para. 44 f.) nor during (El Dridi judgment) the return procedure.

Moreover, the Court has also clarified the scope of application of Article 2(2)(b) of the Directive. This rule allows Member States not to apply the directive to third-country nationals “who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.”

According to the Court, however, this provision clearly cannot be interpreted as allowing States not to apply the directive to third-country nationals who have committed only the offence of illegally staying, since such an interpretation would deprive the directive of its purpose and binding effect.

Thus, if the Court has held that, as a matter of principle, illegal immigration may be criminalized, it has also clarified that criminal sanctions may only be adopted once the return procedure is exhausted, if the adoption of coercive measures did not enable the removal of the immigrant to take place, and only in so far as there is no “justified ground for non-return.” In practice, the scope of application of criminal sanctions is therefore extremely limited.