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06 December 2011

Irregularly Staying Third Country Nationals: Is Criminal Prosecution an Option?

C-329/11 Achughbabian CJEU 6 December 2011

The EU adopted Directive 2008/115 setting out common standards on the return of “illegally staying” third country nationals on 16 December 2008 (the Returns Directive). Ever since, it has been a source of controversy. Denmark, Ireland and the UK are not bound by the Directive.

The CJEU has considered the Directive three times so far. The first, a case from Bulgaria,[1] resulted in a third country national being released because the maximum period of detention for removal purposes under the Directive (18 months) had been exceeded. The second case, from Italy,[2] resulted in the release of a third country national irregularly staying in Italy and convicted of the offence of illegal residence rather than being subject to the conditions of the Returns Directive. The Court held that the Directive precludes legislation which provides for a sentence of imprisonment to be imposed on an “illegally staying” third-country national on the sole ground that he or she remains in the State contrary to an order to leave instead of applying a return procedure (para 63). The third case handed down last week, prohibits Member States from applying national criminal law against overstaying (or illegal entry) resulting in third country nationals going to jail instead of applying the Returns Directive first to expel the individual (and detain him or her pending detention if necessary).[3] All of these cases have been dealt with under the CJEU’s urgent procedure because the individuals were in detention.

The Facts

Mr Achughbabian (eventually identified as an Armenian national) was picked up as an overstayer in police identity checks in a Paris suburb in June 2011. He had been the subject of an expulsion order in February 2009 but he had not left and the French authorities did nothing to make him leave. The order lapsed (it would seem) and a new order was made in June 2011 accompanied by a detention order. The issue arose over the status of the detention order.

The Courts Finding

First, the CJEU held that Member States can detain people for brief but reasonable periods of time to identify who they are and whether they are “illegally staying” (para 31). This is consistent with the European Court of Human Rights’ judgment on administrative detention in Saadi v UK.[4]

Secondly, while Member States are entitled to make their own criminal laws as they wish, they must adjust their criminal legislation in the field of irregularly staying third country nationals to comply with the Directive. Specifically, States cannot apply criminal legislation capable of imperilling the realisation of the aims pursued by the Directive thus depriving it of effectiveness (para 33).

Thirdly, the Directive requires Member States to expel third country nationals to whom they do not issue residence permits. Article 8(1) of the Directive requires States to take all measures necessary to carry out removal – the physical transportation of the person concerned out of the State (para 35). Detention of a third country national is only permitted for the purposes of preparing and carrying out the removal (and is limited to a maximum of 18 months) (para 36).

Fourthly, the imposition and implementation of a sentence of imprisonment during the return procedure does not contribute to the realisation of expulsion. Therefore the sentence of imprisonment is inconsistent with Article 8 of the Directive. The return procedure must be the priority in the treatment of the third country national (rather than criminal law). So any deprivation of liberty must in accordance with the Returns Directive not a criminal sanction. Any national criminal legislation which results in the third country national being sentenced and imprisoned for a criminal offence of illegal stay is likely to thwart the application of the Directive because it will delay expulsion (para 39). Any other approach would deprive the Directive of its purpose and binding effect (para 41).

Fifthly, after the end of the return procedure foreseen in the Directive (ie after 18 months detention which has been unsuccessful as regards ensuring the individual’s expulsion) the Directive does not preclude criminal sanctions under national law on the third country national who is still floating around in the Member State “illegally present” contrary to national criminal law (para 48). However, a sentence of imprisonment cannot be imposed and carried out after the end of the Returns Directive detention but before expulsion (para 45).

What Does this Mean?

Boiling the judgment down to the bare bones, it seems to mean that Member States cannot use their criminal laws on irregular stay against third country nationals overstaying or otherwise irregularly on the territory until after they have made every effort to expel the person. They cannot convict and imprison such a person at the end of the immigration detention where the authorities have the possibility of expelling the individual. But where the person is effectively un-removable and the return procedure is finished (ie the person has done 18 months in administrative detention and has been released) the authorities just may be able to use their criminal laws on irregular stay at that point.

16 December 2011

Elspeth Guild, Kingsley Napley LLP, London



1 C-357/09 Kadzoev [2009] I-11189.

2 C-61/11 El Dridi 28 April 2011.

3 C-329/11 Achughbabian 6 December 2011.

4 27 Sep 2005.