ECJ Rules Italy May Not Criminally Punish Illegally Staying Migrants Who Fail to Depart

The First Chamber of the European Court of Justice issued a decision on 28 April ruling that the Italian law which punishes migrants who remain in Italy after being ordered to depart is precluded by EU Directive 2008/115 which established the procedure by which Member States may return illegally staying third country nationals.  The ruling was made in the case of Hassen El Dridi alias Soufi Karim, Case C‑61/11 PPU, 28 April 2011.

The Italian law in question was enacted in 2009 as part of a “security package” (“pacchetto sicurezza”) of immigration laws and punishes the act of illegally staying in Italy after being ordered to depart with 1 to 4 years imprisonment.  Italy has never transposed Directive 2008/115.  The deadline for doing so was 24 December 2010.

The Court’s ruling was as follows:

“Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.”

The Court suggested that penalties might be imposed by a Member State after the procedures required by the Directive had been exhausted: “[This] does not preclude the possibility for the Member States to adopt, with respect for the principles and objective of Directive 2008/115, provisions regulating the situation in which coercive measures have not resulted in the removal of a third-country national staying illegally on their territory.” Para. 60.

Interior Minister Roberto Maroni criticised the decision saying that it risks making expulsions difficult or impossible.  UNHCR spokeswoman Laura Boldrini said that the ECJ decision was consistent and in harmony with what has already been expressed by the Italian courts, specifically the Constitutional Court and the Supreme Court, and expressed the hope that the EU Directive would soon be implemented.

Click here for ECJ Decision.

Click here for ECJ Press Release.

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The ECJ Press Release provides a summary of the ruling; here are some excerpts from the ruling:

[Facts and Procedural Background]

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18      Mr El Dridi is a third-country national who entered Italy illegally and does not hold a residence permit. A deportation decree was issued against him by the Prefect of Turin on 8 May 2004.

19      An order requiring his removal from the national territory, issued on 21 May 2010 by the Questore di Udine pursuant to that deportation decree, was notified to him on the same day….

20      A check carried out on 29 September 2010 revealed that Mr El Dridi had not complied with that removal order.

21      Mr El Dridi was sentenced at the conclusion of an expedited procedure by a single judge of the Tribunale di Trento (District Court, Trento) to one year’s imprisonment for the offence set out in Article 14(5b) of Legislative Decree No 286/1998.

22      He appealed against that decision before the Corte d’appello di Trento (Appeal Court, Trento).

[Referral of Questions to Court of Justice]

23      That [appeal] court is in doubt as to whether a criminal penalty may be imposed during administrative procedures concerning the return of a foreign national to his country of origin due to non-compliance with the stages of those procedures, since such a penalty seems contrary to the principle of sincere cooperation, to the need for attainment of the objectives of Directive 2008/115 and for ensuring the effectiveness thereof, and also to the principle that the penalty must be proportionate, appropriate and reasonable.

[***]

25      In those circumstances, the Corte d’appello di Trento … refer[ed] the following question to the Court of Justice for a preliminary ruling:

‘In the light of the principle of sincere cooperation, the purpose of which is to ensure the attainment of the objectives of the directive, and the principle that the penalty must be proportionate, appropriate and reasonable, do Articles 15 and 16 of Directive 2008/115… preclude:

—      the possibility that criminal penalties may be imposed in respect of a breach of an intermediate stage in the administrative return procedure, before that procedure is completed, by having recourse to the most severe administrative measure of constraint which remains available?

—      the possibility of a sentence of up to four years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with?’

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[ECJ’s Rationale]

58      … the Member States may not, in order to remedy the failure of coercive measures adopted in order to carry out forced removal pursuant to Article 8(4) of [Directive 2008/115], provide for a custodial sentence, such as that provided for by Article 14(5b) of Legislative Decree No 286/1998, on the sole ground that a third-country national continues to stay illegally on the territory of a Member State after an order to leave the national territory was notified to him and the period granted in that order has expired; rather, they must pursue their efforts to enforce the return decision, which continues to produce its effects.

59      Such a penalty, due inter alia to its conditions and methods of application, risks jeopardising the attainment of the objective pursued by that directive, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals. In particular, as observed by the Advocate General in point 42 of his View, national legislation such as that at issue in the main proceedings is liable to frustrate the application of the measures referred to in Article 8(1) of Directive 2008/115 and delay the enforcement of the return decision.

60      That does not preclude the possibility for the Member States to adopt, with respect for the principles and objective of Directive 2008/115, provisions regulating the situation in which coercive measures have not resulted in the removal of a third-country national staying illegally on their territory.

61      In the light of the foregoing, it will be for the national court, which is called upon, within the exercise of its jurisdiction, to apply and give full effect to provisions of European Union law, to refuse to apply any provision of Legislative Decree No 286/1998 which is contrary to the result of Directive 2008/115, including Article 14(5b) of that legislative decree (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 24; Case C-462/99 Connect Austria [2003] ECR I-5197, paragraphs 38 and 40; and Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I-0000, paragraph 43). In so doing, the referring court will have to take due account of the principle of the retroactive application of the more lenient penalty, which forms part of the constitutional traditions common to the Member States (Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraphs 67 to 69, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 59).

62      Consequently, the answer to the question referred is that Directive 2008/115, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

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On those grounds, the Court (First Chamber) hereby rules:

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.”