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by Marie Garcia*, CDRE   GDR - ELSJ - Logo 5'

On 1 October 2015, the Court of Justice of the European Union (CJEU) handed down its ruling in the Celaj case. The Court’s judgment, which did not follow the opinion of the Advocate General, adeptly frames the context of the debate on the process of criminalising immigration law in EU Member States. Specifically, the case required the European Union’s judicial authority to answer the question of whether national criminal law applies in the area of returns or whether the the law on returns is governed only by EU law and its respective sanctions.

Criminal sanctions and the Return Directive

In the request for a preliminary ruling made by the Tribunal of Florence in June 2014, the Italian judiciary once again caused a stir. By asking whether Mr. Celaj, an Albanian national illegally present on Italian territory, can face imprisonment for re-entering Italy in violation of his three-year entry ban, the national court raised the thorny problem of using criminal sanctions in the framework of the return process.

It may be tempting for some to consider that the case law of El Dridi and Achughbabian negates, in principle, the possibility for Member States to resort to criminal sanctions in the context of Directive 2008/115. In law, however, there is nothing incompatible between the Return Directive and the use of criminal law provisions. It is true that the above cases bring to light, in one instance, the unorthodox Italian use of criminal law as part of the return procedure, and in the other, the specifics of French law governing police custody. However, those cases were not intended to question the issue of the exercise of competences set out in the treaties by excluding the possibility of employing national criminal law to ensure the objective of the return. And herein lies the first lesson of Celaj ruling.

Pursuant to its traditional case law (Casati, CJEU C-203/80, 11 November 1981), the CJEU definitively reaffirmed what it had already said about the imprisonment of third country nationals whose return procedure had not yet been completed (El Dridi, Achughbabian and Sagor). Criminal law matters remain a Member State competence, with each Member State free to adopt criminal sanctions in order to deter third-country nationals from remaining illegally on their territory. The limit set for their action is typical in EU law: such criminal measures cannot jeopardise the implementation of the return.

In this case, Mr. Celaj had already been the subject of a return procedure which led to his removal to his country of origin, and Directive 2008/115 therefore “does not preclude, in principle, the law of a Member State from classifying the unlawful re-entry of a third-country national in breach of an entry ban as an offence and laying down criminal law sanctions to deter and penalise such an infringement” (paragraph 20 of the ruling).

So, as the Court had implicitly expressed in Filev Osmani (“a Member State may not impose criminal sanctions for breach of an entry ban falling within the scope of Directive 2008/115 if the continuation of the effects of that ban does not comply with Article 11(2) of that directive.”), and as the Commission states in its Return Handbook (Member States “may in principle declare the presence of third-country nationals who are the subject of an administrative entry ban punishable as a criminal offence under criminal law”), the link between the criminal procedure and the returns procedure does not really pose a question of legal principle in the Celaj case.

Nevertheless, and this is not to be trivialised, the use of criminal sanctions in the area of returns, and more generally in asylum and immigration law, opens the largely political debate on the legitimacy of the process of criminalising foreigners (see, for example, “’Crimmigration’ in the European Union through the Lens of Immigration Detention”, or “Criminalisation of Migration in Europe: Human Rights Implications”). Both sides of this debate are well represented, and not everyone involved in the debate ismotivated by objective legal considerations.

Criminalising the actions of foreigners who do not respect immigration legislation questions the very function of criminal law, just as it casts doubt upon the ideological foundations of the migration policy of European states. If, in principle, criminal law prevents, sanctions and provides a remedy for an interference with something which society considers to be a legitimate interest, identifying this breach in the area of migration requires that we consider it independently of the passions and assumptions present in the current political discourse.

Several studies, emanating in particular from the North American continent, indicate that the effects of such “criminalisation” can be more readily identified as the stigmatisation of foreigners than as the successful management of migration flows. In contrast, EU Heads of State and Government continue to be convinced of the deterrent effect of such sanctions, as evidenced by the recent Council conclusions on the future of EU return policy. These conclusions continue to associate the effectiveness of the return policy with the use of coercive measures. This is the second lesson of the Celaj ruling.

Criminal sanctions and the effectiveness of the returns procedure

The Celaj case was an opportunity for clarification. The Court will remember that, currently in immigration law and policy, of which the Return Directive is a major component, the issue is not so much to question the legitimacy of criminal sanctions in the area of migration, but rather to determine to what extent criminal sanctions can help to strengthen the efficiency and credibility of the return procedure, without compromising its smooth running.

Dispensing with the Advocate General’s argument that the effectiveness of the return process would be compromised by the application of a criminal penalty for violating the entry ban, because the primary objective of Directive 2008/115 is not to prevent illegal presence on the territory but rather to put an end to it, the Court of Justice offered a contextualised response.

Paragraph 23 of the judgment explains that, according to the recitals of the Return Directive, read in the light of the TFEU, “the implementation of a return policy is an integral part of the development, by the European Union, of a common immigration policy aimed at ensuring, inter alia, the prevention of illegal immigration and enhanced measures to combat it.” Thus, the entry ban fits within an integrated system for managing illegal immigration, the effectiveness and credibility of which require the use of coercive measures, including criminal sanctions.

Relying on standard models of legal application in the EU to support its reasoning, the Court made its message very clear. The absence of penalties for violating an entry ban had to entail legal consequences, otherwise it risked rendering the European migration system obsolete. Moreover, law-makers’ intention to apply a European dimension to such entry ban decisions supported the idea that criminal sanctions help to ensure that the EU’s external borders remain watertight.

In this sense, the Court exemplifies respect for the principle of sincere cooperation, as enshrined in Article 4(3) of the TEU, which requires Member States to take any appropriate measures to ensure fulfilment of the obligations arising from EU law. This idea is nothing new. In 1989, the Court ruled that national authorities “must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive” (Commission v. Greece, CJEU C-68/88, 21 September 1989). The ruling thus compelled Member States that tend to be lax on the issue to punish infringements of EU law.

Just as a Member State would seek to enforce its national law through the use of criminal sanctions, it should be equally committed to the application of the law of the European Union. The law on returns is no exception, and the Celaj ruling underlines its inclusion in the common body of law with the accompanying treatment… Short of  reserving a separate status for violations of EU immigration law within EU law, the reasons for which would not be  readily identifiable, the  Court has come to the only logical conclusion.

However, criminal penalties could be neither blind nor systematic. Pre-emptively dispelling criticisms of its judgment, the Court points out before concluding that not only is the application of the penalty subject to full respect for fundamental rights, but the entry ban decision must also be compatible with the requirements of Article 11 of the Return Directive, with the national court being in charge of conducting this assessment.

The conclusion of the Court is therefore not particularly surprising, although the facts of the case do stir the reader’s curiosity. Once again, the findings of the Luxembourg Court are a reminder that some Member States are not implementing Directive 2008/115 correctly. It should be remembered that, for “technical” reasons,  the Italian authorities did not actually deport Mr. Celaj, ordering him instead to leave Italian territory by his own means, without granting him a period of time in order to carry out his voluntary departure.

Of course, this clear lack of due diligence has implications regarding the objectives of effectiveness and promptness in the return procedure. But, more importantly, it encourages irregular migrants to remain in a precarious and inhuman position. Isn’t it surprising that the Court of Justice does not see it this way?

*Translated from French by the Odysseus Network’s OMNIA Team