AG’s Opinion in Celaj: Lost in “Crimmigration”?

Factual issues

On 28 April 2015, the Advocate General (AG) delivered his opinion in the case C-290/14, Skerdjan Celaj. This Albanian national was arrested in August 2011 on Italian territory for attempted robbery. As he was unable to provide any documentation, a removal order was issued against him by the Quaestor of Florence, accompanied by a three-year entry-ban. Based on the presumed risk of absconding, no period for voluntary departure had been granted. For technical reasons, his removal did not take place but Mr. Celaj left the country, on his own initiative, in September 2012. He re-entered, however, Italian territory at an unknown date and was arrested by the police in February 2014. The public prosecutor requested a sentence of eight-months imprisonment. The Tribunal of Florence first asked the CJEU whether such a measure (potentially up to 4 years) was compatible with the EU Return Directive (RD), the applicant having re-entered in breach of an entry ban provided for by Article 11 of the Directive.

 AG legal assessment

With reference to Arts. 6, 15 and Recital 2 of the directive, the AG first recalls that the main objective of the Directive is an effective removal and repatriation policy. He then turns to the question of national criminal law sanction in connection with illegal stay and refers to previous CJEU judgments in cases El Dridi, Achughbabian and Sagor. His analysis shows that despite the well-established principle according to which Member States remain competent in criminal matters, as long as this does not contravene the application of the Return Directive, some uncertainties remain, due to the lack of a clear line provided by the Court in those judgments.  Member States cannot impose criminal sentences, including imprisonment, when they would frustrate the application of Article 8 RD, delaying the enforcement of the return decision. However, the Court still permits a criminal-law imprisonment after the application of the return procedure. But the Court does not precisely define when such a procedure is deemed to be ‘applied’.

Accordingly, opinions differ as to whether it is possible to resort to national criminal-law imprisonment in the case of an illegal re-entry following a return decision: Italy, the Commission and other intervening parties (CZ, EL, DE, NO and CH) consider that re-entry situations must be distinguished from the very return procedure, arguing that in the case of re-entry, Member States are allowed to adopt dissuasive measures in order to prevent further illegal entry. Both the referring Court and the AG believe, instead, that such a distinction is irrelevant: the obligation for Member States to remove an illegally-staying TCN persists as long as the person remains illegally on their territory, regardless of a first or a subsequent entry in breach of a previous removal order. A contrary interpretation would lead, according to the AG, to a situation where Member States could unilaterally suspend the application of the Directive by imposing prison sentences, which would be inadmissible.

The AG then addresses the issue of the entry ban provided for by Article 11 RD. It is perhaps the trickiest part of his reasoning given how little case law there is on this issue and its inextricable link with other types of refusals of entry, e.g. Schengen entry bans prohibiting individuals considered dangerous or non-desirable from entering a state from which they have been expelled. While acknowledging this undeniable connection and the preventative effects of such measures, the AG distinguishes both instruments. He, also, stresses the ancillary nature of an entry ban accompanying a return decision, the aim of which being to end and not to prevent an illegal stay.

He concludes by stating that detention or imprisonment connected with an illegal stay should be exclusively governed by Arts. 15 and 16 RD, given that, in any case, ‘imprisoning a person ultimately delays a future return’. He refers, however, to the difficulty of reconciling such reasoning with the second indent of the operative part of Achughbabian. In that case, the CJEU ruled that the Return Directive does not preclude national criminal penalties for illegal stays imposed on a TCN, to whom the return procedure established by the said Directive has been applied and who is yet staying illegally in that territory with no justified grounds for non-return. The AG opts, therefore, for a narrow interpretation, considering that the only possible way to comply with the Directive is to limit such a finding to the situation in which a return procedure has been pursued without success: the person, then, continues to stay illegally on the Member State’s territory with no justified grounds for non-return.

Comments

It is not the first time that the Court has been called upon to rule on the compatibility of a national criminal law sanction with the provisions of the Return Directive. In the present case, however, it has to deal with the particular issue of national imprisonment measures sanctioning the violation of an entry ban imposed under the Return Directive. Here, the problem is the lack of clarity characterising previous CJEU case law and the fact that neither the Court nor the AG has been able to precisely define what is meant by a return procedure ‘applied’. Indeed, determining this exact moment is crucial as it allows Member States to resort to national criminal measures without running the risk of jeopardising the application and the objectives of the Return Directive.  In this regard, AG’s cautious interpretation of Achughbabian case, allowing imprisonment measures when a TCN continues to stay illegally on the territory after an unsuccessful return procedure, does not clarify the question. His attempt to reconcile, at all costs, his reasoning with the Court’s previous case law is, meanwhile, potentially confusing as it considerably narrows the interpretation of the Court, without even taking into account the wider context and the factual circumstances on which this finding has been made.

Second, it is striking that, besides agreeing with the referring Court’s analysis, equating the first irregular entry/presence to an illegal presence in violation of the ban, the AG does not properly argue against the objections raised by the intervening Governments, distinguishing between situations of first and subsequent illegal entries and stressing the dissuasive effect in case of deliberate violation of an individual ban.  Such arguments, however, do not appear completely spurious and unfounded; they underline, on the contrary, a serious concern expressed by both Member States and non-EU countries, in the Schengen Acquis, though they are not bound by the Directive. Additionally, the constant disregard in Italy for penalties provided by the national system and frequent re-entries in violation of bans clearly demonstrate the need to address this issue with particular attention. Therefore, one might have expected a deeper analysis from the AG on this specific question, as well as a more appropriate weighting of the “ontological” difference of the two situations.

Third, when addressing the issue of the entry-ban accompanying a return decision, the AG faces the paradox generated by the Directive itself. He recalls that the purpose of an entry-ban under the Directive is to dissuade third-country nationals from re-entering a country illegally. But the AG does not explicitly refer to the national ‘sanctions’ likely to be adopted in case of an unlawful re-entry. Additionally, nothing is said about the ‘criminalisation’ of an entry ban’s violation. While the Return Directive does not preclude Member States providing sanctions under national administrative law in such situation, it still remains unclear whether (and to what extent) the non-respect of entry bans accompanying return decisions can be subject to national criminal measures. In Filev and Osmani, the Court implicitly recognised this possibility when declaring that criminal sanctions imposed for the breach of over long entry-bans were incompatible with the Return Directive (§ 37). However, the Court is expected in the present case to provide further and clearer interpretation of the possibility – and the extent to which – criminalising non-respect of an entry ban is compatible with the Return Directive. The question which can be asked in this context is: how Member States are supposed to deal with TCN’s who, after being removed due to the fact that they posed a risk to public policy, public security or national security (Art. 8 in conjunction with Art. 7(4) (RD)) re-enter in violation of an entry-ban?

Finally, it is interesting to note that the AG repeatedly referred to the objective of the Directive to justify his conclusion. However, can we really deduce from Recital 2, as the AG seems to think, that imprisoning a person ultimately delays a future return (§ 60)? In that sense, the Court affirmed in Sagor that a home detention order, imposed and enforced during the course of a return procedure was liable to delay and thus to impede the measures which can be used to achieve removal (§ 45); in our view, it did not categorically declare such national measures incompatible with the Return Directive. In the present case, the imprisonment requested by Italian authorities was rather long: it could have lasted anything between eight months and four years. But one might wonder whether any national sentence in connection with an illegal stay must be excluded during the return procedures, regardless of its length. Alternatively, a balanced assessment would be required, in the light of circumstances, excluding only national criminal law sanction likely to suspend or delay the removal process. More fundamentally, can it be assumed a priori that resorting to criminal sanction is contrary to the Return Directive under any circumstance? It seems to us that a weighted assessment is more appropriate in the light of the very principle of proportionality, outlined under Recital 20, which precludes the Return Directive from going beyond what is necessary to achieve its objectives.

 

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