1. Spanish Law and judicial doctrine on illegal stay of TCN
On 23 April 2015 the CJEU resolved the Case Zaizoune. It did so by seemingly rejecting the Spanish Supreme Court doctrine that establishes that the mere illegal stay of third-country nationals in Spain should be sanctioned in general terms with a fine instead of removal from Spanish territory.
This jurisprudential doctrine was established by the Spanish Supreme Court between 2005 and 2008 with the objective of interpreting the (current) Article 57(1) of the Spanish Organic Immigration Act 4/2000 of 11 January (hereafter, Immigration Act). This states that a fine is the main sanction in cases of TCNs illegally staying on Spanish territory. The Immigration Act has been modified several times but the provision on the general character of the fine has not been changed.
The Supreme Court’s interpretation of the Immigration Act states that only when there are aggravating circumstances and even then with regard to the principle of proportionality, should removal be the appropriate sanction for third-country nationals illegally staying in Spain. Aggravating circumstances would include: lack of documentation; having been detained on grounds of participation in a crime; not having a house or family roots in Spain; or non-compliance with a decision of mandatory exit without trying to become regular in administrative terms. In the absence of such circumstances, a fine remains the appropriate sanction.
This jurisprudential doctrine was developed before the adoption of Directive 2008/115/EC (Return Directive). After the expiry of the transposition period of the Directive, the Supreme Court did not have the opportunity to balance the so-called fine-doctrine since the contentious administrative jurisdiction has been reformed, so since 2008. With that reform, the competences on judicial appeals against administration decisions on the removal of TCNs were transferred to the Contentious Administrative Courts and, on judicial appeal (second instance), to the regional High Courts. These Courts have, however, followed as a general rule the Supreme Court fine-doctrine.
Moreover, on 22 October 2009, the CJEU answered the High Court of Murcia’s preliminary reference Zurita García and Choque Cabrera on a similar question, ruling that “where a third-country national is unlawfully present on the territory of a Member State because he or she does not fulfil, or no longer fulfils, the conditions of duration of stay applicable there, that Member State is not obliged to adopt a decision to expel that person”. However, this Court’s answer was referred to Article 6ter and 23 of the Schengen Convention. It should be noted that the period for the transposition of the Return Directive (up to 24 December 2010) had not yet elapsed at that time.
Nevertheless, on 13 March 2013, on the occasion of a direct appeal (no cassation) from several NGOs to the Supreme Court against some provisions of Royal Decree 557/2011 (Implementation Rules to the Immigration Act), the Supreme Court initiated, for the first time, a significant change in the so called fine-doctrine. According to paragraph 7 (FJ. 7) of this decision, it explains that the adoption of the Return Directive marked a significant shift as regards removal of irregular third-country nationals. It has considerably reinforced Member States’ obligation to guarantee the effectiveness of the return procedures, as illustrated in the jurisprudence of the CJUE. Accordingly, such a major change at the EU level is likely to challenge the current interpretation and application of the Spanish legislation ‘that permits, as of today, the sanctioning of the illegal stay of a third-country national with a fine instead of directly applying a return decision’.
Notwithstanding this assessment, Spanish High Courts have continued to apply the so called fine-doctrine after the Supreme Court decision of 13 March 2013. Only a few High Court decisions refer to the new position of the Supreme Court deciding on removal rather than fine. However, they continued to rely on aggravating circumstances when opting for removals.[i]
This was the Spanish scenario regarding the sanction to be applied in cases of TCNs illegally staying on Spanish territory when on 17 December 2013 the High Court of the Basque Country decided to address the CJEU with a preliminary reference, asking the Luxembourg Court the following question: “In the light of the principles of sincere cooperation and the effectiveness of directives, must Articles 4(2), 4(3) and 6(1) of Directive 2008/115/EC be interpreted as meaning that they preclude legislation, such as the national legislation at issue in the main proceedings and the case-law which interprets it, pursuant to which the illegal stay of a foreign national may be punishable just by a financial penalty, which, moreover, may not be imposed concurrently with the penalty of removal?”
2. The Case of Samir Zaizoune
In October 2011, the Governmental Sub-delegate in Gipuzkoa adopted a removal order and an entry ban for five years against Samir Zaizoune, a Moroccan national illegally staying in Spain within the meaning of Article 53(1)(a) of the Spanish Immigration Act. Mr. Zaizoune appealed against that decision before the Administrative Contentious Court num. 2 (San Sebastián) that invalidated the decision and replaced the removal with a fine. The above-mentioned Governmental Sub-delegate appealed against that judgment at the High Court of the Basque Country. Before deciding on the case, the High Court presented a reference for a preliminary ruling to the CJEU. The Court focuses its reply on the interpretation of Articles 6(1) and 8(1), read in conjunction with Article 4(2) and (3) of the Directive 2008/115/EC.
The CJEU states that the main objective of Directive 2008/115/EC is to ensure an effective removal and repatriation policy. Moreover, it recalls that in El Dridi and Achughbabian it had been stated that Article 6(1) of Directive 2008/115/EC provides for an obligation to issue a return decision against any third-country national illegally staying in a Member State, unless some exceptions laid down by Article 6(2) to (5) arise. Additionally, it recalled in Sagor that the obligations imposed by Article 8, in order to undertake the removal of third-country nationals, must be fulfilled as soon as possible.
Furthermore, the CJEU holds that no provision of the Return Directive, not even Article 4(2), allows for a choice here, depending on the circumstances of the case, between a fine and removal. In relation with Article 4(3) the Court states that the possibility of Member States adopting more favorable national provisions must be compatible with the Return Directive and here there was no compatibility.
On those grounds, the CJEU ruled that the Return Directive should be interpreted as precluding a Member State legislating for third-country nationals illegally staying in its the territory to be either fined or removed, the two measures being mutually exclusive.
3. Comments on Zaizoune at national level
The judgment of the CJEU in the case of Zaizoune has raised concerns among most Spanish lawyers and specialists. Whereas, for the time being, the High Court of the Basque Country has not adopted a final decision on the main case, there has been a similar case upon which a decision was made right after the CJEU’s ruling on Zaizoune. The High Court of Galicia (20 May 2015) has applied the fine-doctrine again, on grounds of the non-retroactivity of the CJEU’s interpretation.
Moreover, on 25 May 2015, the General Council of the Spanish Bar Association/Sub-Commission for Aliens Law published a Memo on how to react to the new scenario after the CJEU decision on Zaizoune. This Memo is addressed to Spanish Courts and holds that the decision of the CJEU in Zaizoune does not affect the current doctrine of the Supreme Court and the High Courts of Justice regarding the removal of TCNs irregularly staying in the Spanish territory. It states that “the Organic Immigration Act 4/2000 – foreseeing the imposition of a fine for merely illegally staying TCNs- read in conjunction with articles 24, 1 an 2 of Royal Decree 557/2011 -establishing the compulsory departure within a period of a maximum of 15 days- is in accordance with Articles 6 (1) and 8 (1)of Directive 2008/115/CE”.
The grounds in the Memo are in line with a repeated argument put forward by Spanish lawyers. From their point of view, the key issue is that the question presented by the High Court of the Basque Country on Zaizoune has been wrongly formulated. The Memo as well as the specialists’ opinion hold that it is incorrect to state that the Spanish legislation and jurisprudential doctrine are punishing the illegal stay of a third-country national with “a financial penalty, which, moreover, may not be imposed concurrently with the penalty of removal”. According to the Memo and the experts’ opinion, since the financial penalty is accompanied with a departure order, [ii] financial sanction and removal orders are not mutually exclusive. Rather, they are successive. In that sense, the Memo considers that the imposition of a fine plus the departure order correspond, according to the Return Directive, to a return decision.
Moreover, the Memo encourages Spanish Courts to ask the CJEU for a preliminary ruling with the following question in order to clarify the current scenario:
“1. Must Articles 4(2), 4(3) and 6(1) of Directive 2008/115/EC be interpreted as meaning that they preclude legislation, such as the Spanish legislation and the case-law which interprets it, pursuant to which the illegal stay of a third country national may be punishable by a financial penalty and the obligation to leave the Spanish territory within 15 days, leading to the removal in case of non-compliance with the voluntary departure order?
- Must Articles 7(1), 6(4) and 6(5) of Directive 2008/115/EC be interpreted as meaning that they preclude legislation, pursuant to which the procedure to be applied in cases of a purely illegal stay of TCNs is a one-step procedure (removal order issued together with the return decision) that precludes the TCN from choosing voluntary departure?”
Finally the Memo holds the non-retroactivity of the CJEU’s decision on Zaizoune follows from the ECtHR’s case-law Del Río Prada vs Spain . This case demonstrates that a new interpretation of the law should not be retroactively applied when it is not in favor of the sanctioned person.
4. Our view
First, in our view, arguments corresponding to the first question proposed by the General Council of the Spanish Bar Association are not entirely correct.
The General Council interpretation could save the Spanish Immigration Act and its Implementation Rules (namely, that article 57(1) of the Immigration Act-determining that a fine is the main sanction in cases of TCNs merely illegally staying – read jointly with articles 24, 1 and 2 of Royal Decree 557/2011 – establishing the compulsory departure within a period of a maximum of 15 days- are not contrary to the Return Directive[iii]).
However, this is not the case regarding the so called Supreme Court fine-doctrine (before it was adjusted by the decision of 13 March 2013, above-mentioned in this comment) that several Spanish High Courts continue to apply in cases of irregular stay, in the absence of aggravating circumstances. The Courts use the financial sanction as a lighter sanction vis à vis the removal. In many cases this judicial interpretation applies because Courts find that the third-country national has settled within Spanish society. However, Spanish Courts seldom envisage the possibility of further regularization[iv].
In our opinion, in cases where Spanish Courts decided not to return a third-country national, they should nonetheless expressly permit the third-country national’s regularization (or some kind of similar status). A failure to do so could see the Spanish system interpreted as a pull factor for illegal immigration.
Secondly, the issue raised by the subsequent preliminary question proposed by the General Council of the Spanish Bar Association, is a different – but interrelated – one. It deals with a (perhaps) incorrect application of the Return Directive by Spanish administration. Indeed, it concerns the frequency of use of urgent return procedures (procedimiento preferente) in Spain, provided by Article 63, 1 of Spanish Immigration Act, which does not include the possibility of voluntary departure granted to illegally-staying TCNs. However, according to Article 63 of the Immigration Act and article 234 of the Royal Decree 557/2011 (on the Implementation Rules to the Immigration Act) the urgent procedure should only be followed when: 1) there is a risk of non-appearance; 2) if the third-country national complicates his/her removal; or 3) if the third-country national represents a risk for the public order, public security or national security. In all other cases the ordinary procedure should be applied.
There are other differences and a low level of guarantees for TCNs. But an important difference between a return decision following an ordinary procedure and urgent procedure (procedimiento preferente) is that, in the case of the latter, there is no option for voluntary departure – established under Article 7 of the Return Directive – in order to avoid an entry ban[v].