Opinion of the Advocate-General

Opinion of the Advocate-General

1. Like the case of El Dridi , (2) this reference for a preliminary ruling from the Cour d’appel de Paris (France) draws the attention of the Court of Justice to 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, (3) in the context of national criminal law.

2. In this case, the Court’s answer to the question referred for a preliminary ruling would be useful to the national court in assessing the legality of the deprivation of the individual liberty of Mr Achughbabian, a third-country national, on the ground of his illegal stay in France.

3. On the basis of the information contained in the order for reference and in the file sent to the Court of Justice by the national court, the situation of Mr Achughbabian may be summarised as follows:

– on 9 April 2008, he entered France;

– on 28 November 2008, l’Office français de protection des réfugiés et apatrides (French office for the protection of refugees and stateless persons) dismissed his application for admission to stay by way of asylum;

– on 27 January 2009, the Prefect of Val-d’Oise decided to refuse his application for the issuing of a residence permit and to require him to leave French territory within one month of notification of the decision in question;

– on 24 June 2011, he was stopped for questioning and placed in police custody on suspicion of the offence of illegal staying under Article L. 621-1 of the code de l’entrée et du séjour des étrangers et du droit d’asile (‘Ceseda’);

– on 25 June 2011, the Prefect of Val-de-Marne made a deportation order and a detention order against Mr Achughbabian, and he was detained in a detention centre accordingly;

– on 27 June 2011, the juge des libertés et de la détention (liberty and custody judge) of the Tribunal de grande instance de Créteil authorised the extension of his detention, after dismissing the preliminary objections raised by his lawyer that the procedure was invalid, including a plea that the police custody was invalid, having regard to the judgment in El Dridi ; (4)

– on 28 June 2011, his lawyer appealed to the Cour d’appel de Paris against the order of the Tribunal de grande instance de Créteil on several grounds, including, once again, a claim that the police custody was invalid having regard to the judgment in El Dridi . (5)

4. It was in those circumstances that, on 29 June 2011, the Cour d’appel de Paris ended Mr Achughbabian’s detention, having decided to refer the following question to the Court of Justice for a preliminary ruling:

‘Taking into account its scope, does Directive 2008/115/EC ... preclude national legislation, such as Article L. 621-1 of [Ceseda], which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?’

5. Considering it essential that the French courts should have an answer to the question as soon as possible on the ground that the said answer was likely to prevent possible unlawful deprivations of liberty or reduce their duration, the Court of Justice decided to accede to the request of the national court that the case be subject to the accelerated procedure provided for in Article 23a of the Statute of the Court of Justice and Article 104a of the Rules of Procedure of the Court of Justice.

6. Written observations were lodged before the Court by Mr Achughbabian, by the German, Estonian and French Governments, and by the European Commission.

7. Mr Achughbabian, the Danish, German, Estonian and French Governments and the Commission were represented at the hearing held on 25 October 2011.

Legal background

Directive 2008/115

8. The objective of Directive 2008/115, as is apparent from recitals 2 and 20 and from Article 1 thereof, is to establish common rules concerning return, removal, use of coercive measures, detention and entry bans in relation to third-country nationals staying illegally in the territory of a Member State, such rules to serve as the basis for an effective return policy, complying with fundamental rights.

9. Recitals 5 and 17 of that directive state:

‘(5) This Directive should establish a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.

(17) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by law-enforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities.’

10. Article 2(1) of the said directive defines its scope as follows:

‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’

11. According to Article 6(1) of the same directive, ‘Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5’.

12. In accordance with recital 10 of Directive 2008/115, according to which voluntary return of third-country nationals staying illegally in the territory of a Member State should be preferred over forced return, Article 7 of the said directive, headed ‘Voluntary departure’, reads as follows:

‘1. A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. ...

4. If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.’

13. According to Article 8(1) of Directive 2008/115, headed ‘Removal’, ‘Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7’.

14. According to Article 20 of Directive 2008/115, Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the latter, subject to Article 13(4) thereof, by 24 December 2010.

National legislation

15. Article L. 621-1 of Ceseda provides:

‘A foreign national who has entered or resided in France without complying with the provisions of Articles L. 211-1 and L. 311-1 or who has remained in France beyond the period authorised by his visa commits an offence punishable by one year’s imprisonment and a fine of EUR 3 750.

The court may, further, prohibit a convicted foreign national, for a period which may not exceed three years, from entering or residing in France. Prohibition from the territory automatically entails deportation, where appropriate at the expiry of the term of imprisonment.’

16. The articles of the Code of Criminal Procedure concerning police custody were amended by Law No 2011-392 of 14 April 2011, which entered into force on 1 June 2011. As a result, Article 62 of the Code of Criminal Procedure in the version applicable at the material time is worded as follows:

‘Persons in respect of whom there is no plausible reason for suspecting that they have committed or attempted to commit an offence may be detained only for the time strictly necessary for them to be heard, not exceeding four hours.

If it appears, during the hearing of the person, that there are plausible reasons for suspecting that he has committed or attempted to commit an offence punishable by imprisonment, he may be detained at the disposal of investigators only under the regime of police custody. His placing under police custody is then notified to him under the conditions laid down in Article 63.’

17. According to Article 62-2 of the Code of Criminal Procedure in the version applicable at the material time, ‘police custody is a coercive measure decided upon by a police officer, under the control of the courts, whereby a person in respect of whom there are one or more plausible reasons for suspecting that he has committed an offence punishable by imprisonment is kept at the disposal of investigators. …’.

Assessment

18. The question referred by the national court reflects the situation which arose in France following the judgment in El Dridi , (6) in which the Court of Justice ruled that Directive 2008/115 precludes legislation of a Member State 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. There are differences of opinion between the French courts as to whether that principle also applies in respect of the sentence of imprisonment provided for by Article L. 621-1 of Ceseda by reason of the entry or illegal stay of a foreign national in France. If that were the case, placing the person concerned in police custody within the meaning of Article 62-2 of the Code of Criminal Procedure requiring suspicion of an offence punishable by a sentence of imprisonment as a condition for the use of such a coercive measure would be excluded on the basis of Article L. 621-1 of Ceseda.

19. Although that question has arisen in the context of judicial review of the deprivation of Mr Achughbabian’s individual liberty, particularly his placing in police custody, (7) it should be stated that placing in police custody, as a criminal law measure depriving a person of liberty, and the conditions for its use do not form the subject-matter of this reference for a preliminary ruling. However, I am aware of the fact that the Court’s answer is likely to have an impact on the possibility of placing persons suspected of committing the offence under Article L. 621-1 of Ceseda in police custody.

20. Article L. 621-1 of Ceseda and Directive 2008/115 have a point in common, namely illegal staying by a third-country national in the territory of a Member State. However, those provisions draw different consequences from that fact. Whilst Article L. 621-1 of Ceseda classifies that fact as an offence punishable by a one-year sentence of imprisonment and a fine of EUR 3 750, Directive 2008/115 provides for the starting of an administrative return procedure in the context of which it must be guaranteed that limitation of the individual liberty of the person concerned is possible only in order to prepare the return of that person and/or carry out his removal on condition that other sufficient, but less coercive, measures cannot be effectively applied.

21. It is true that the French legislation also provides, in the case of illegal staying by a third-country national, for an administrative return procedure in addition to a criminal sanction. The proof thereof is that Mr Achughbabian himself is currently in one of the phases of such a procedure, governed by Ceseda.

22. However, the question referred for a preliminary ruling does not concern that procedure itself and, consequently, I will not examine in the present View the question whether the administrative return procedure to which Mr Achughbabian is subject pursuant to French legislation complies with the requirements that follow from Directive 2008/115. It should nevertheless be stated that, at the material time, France had not fulfilled its obligation, under Article 20 of Directive 2008/115, to bring into force the laws, regulations and administrative provisions necessary to comply with the said directive. As is apparent from the written observations of the French Government, it is only Law No 2011-672 of 16 June 2011, on immigration, integration and nationality, which entered into force on 18 July 2011, which allowed the full transposition into French law of Directive 2008/115. The changes made by that law have not, however, had any impact on the wording of Article L. 621-1 of Ceseda which is at issue in this case.

23. In view of the principle found by the Court of Justice in El Dridi that ‘notwithstanding the fact that neither point (3)(b) of the first paragraph of Article 63 EC, a p rovision which was reproduced in Article 79(2)(c) TFEU, nor Directive 2008/115, adopted inter alia on the basis of that provision of the EC Treaty, precludes the Member States from having competence in criminal matters in the area of illegal immigration and illegal stays, they must adjust their legislation in that area in order to ensure compliance with European Union law, and, in particular, those States may not apply rules, even criminal law rules, which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness’, (8) I consider that the answer to the question in this case requires investigation as to whether or not punishing illegal staying by a third-country national in the territory of a Member State by a sentence of imprisonment is capable of jeopardising achievement of the objectives pursued by Directive 2008/115.

24. Having regard to the wording of recitals 2 and 20 and Article 1 of Directive 2008/115, its objective is easy to identify. It consists in the establishment of common rules concerning return, removal, use of coercive measures, detention and entry bans as regards third-country nationals illegally staying in the territory of a Member State, such rules to serve as the basis of an effective return policy complying with fundamental rights.

25. Before examining whether a provision such as Article L. 621‑1 of Ceseda is capable of jeopardising the attainment of the objective thus defined, I wish to set aside at the outset an argument of the Estonian and French Governments to the effect that Directive 2008/115 applies only as from the time when a return decision has been taken.

26. If that argument were to succeed, it would signify that Directive 2008/115 leaves to Member States the possibility of deciding whether, and at what time, they intend to adopt a return decision, and thus commence the return procedure in respect of a third-country national illegally staying in their territory.

27. However, the said directive does not confer such a discretion on Member States. On the contrary, several provisions of Directive 2008/115 indicate that the latter is designed to constitute the obligation on Member States to initiate the return procedure in the case of any third-country national illegally staying in their territory. Above all, Article 6(1) of Directive 2008/115 provides that Member States are to issue a return decision to ‘any third-country national’ (9) staying illegally on their territory. The exceptions to that obligation are expressly set out in Article 6(2) to (5) of Directive 2008/115.

28. To the obligation mentioned, namely the obligation to take a return decision, there corresponds a correlative right of a third-country national illegally staying in the territory of a Member State to such conduct by the State. It follows that Directive 2008/115 recognises every third-country national illegally staying in the territory of a Member State as having the right to expect that the Member State concerned will take a return decision whereby the return procedure is initiated, with the aim of bringing the illegal stay to an end and in the context of which the individual liberty of the person concerned can be limited only in order to prepare his return and/or to carry out his removal on condition that other sufficient but less coercive measures cannot be effectively applied.

29. To return to the essential problem, consisting in an assessment as to whether or not punishment of the illegal stay by a third-country national in the territory of a Member State by a sentence of imprisonment is capable of jeopardising the attainment of the objectives pursued by Directive 2008/115, attention must be drawn to the return procedure laid down by Directive 2008/115. (10)

30. The said directive provides for the use of coercive measures to ensure the attainment of its objective, namely the implementation of the return decision. As I have already had occasion to state in my View on the case of El Dridi , (11) the said measures are not exhaustively listed in Directive 2008/115. Given the individuality (singularity) of each of the return procedures, that would not even be possible.

31. It is undeniable that a sentence of imprisonment represents a coercive measure. However, it is equally obvious that it is not a measure which contributes to the implementation of a return decision, and thus to attainment of the objective of Directive 2008/115. On the contrary, the sentence of imprisonment provided for in the event of illegal staying by a third-country national (as I have already stated in point 25 of the present View, that is the fact to which Directive 2008/115 attaches the obligation to initiate the return procedure) objectively hinders, if only temporarily, the implementation of a return decision.

32. In that respect, the French Government draws attention to the circulars of the Minister of Justice of 21 February 2006 and 12 May 2011, recommending that prosecutors should bring a criminal prosecution for illegal entry and staying only against foreign nationals who have committed another offence, and discontinue other procedures in order, in particular, to allow the administrative procedure for removal from the territory, which is likely to be put into operation, to proceed in appropriate cases. It is, however, nevertheless apparent from the statistics, also supplied by the French Government, that, despite those instructions, there are cases of criminal conviction based solely on Article L. 621-1 of Ceseda.

33. I should emphasise, however, that that does not imply a general exclusion of any limitation of the individual liberty of the person concerned during the period strictly necessary in order to verify whether the conditions for taking the return decision within the meaning of Article 6(1) of Directive 2008/115 are met. On that point, I share the opinion expressed by the French Government that such a limitation might be necessary in a number of cases (12) and, in accordance with recital 17 of Directive 2008/115, it is a matter for the national legislation of Member States. However, the said limitation of individual liberty cannot be based on a provision such as Article L. 621-1 of Ceseda.

34. In accordance with the foregoing, I consider that the Court should reply to the question of the national court that Directive 2008/115 must be interpreted as precluding national legislation providing for the imposition of a sentence of imprisonment solely on the ground of illegal entry or staying by a third-country national in the territory of the Member State concerned.

Conclusion

35. In the light of the foregoing considerations, I propose that the Court should reply to the question referred by the Cour d’appel de Paris 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 must be interpreted as precluding national legislation providing for the imposition of a sentence of imprisonment solely on the ground of illegal entry or staying by a third-country national in the territory of the Member State concerned.

(1) .

(2)  – Case C-61/11 PPU [2011] ECR I-0000.

(3)  – OJ 2008 L 348, p. 98.

(4)  – Cited in footnote 2 above.

(5) – Cited in footnote 2 above.

(6) – Cited in footnote 2 above.

(7)  – In its reply to a request for clarification from the Court of Justice, the national court explained that the ordinary court, and thus the referring court, represents a guardian of individual liberty. For that reason, it has the responsibility to review, by way of exception, the chain of deprivations of liberty and also the legality of stopping for questioning followed by police custody where the latter immediately precedes a placing in administrative detention. By contrast, cases concerning administrative decisions (a deportation order or detention order) fall within the jurisdiction of the administrative courts.

(8) – Cited in footnote 2 above, paragraphs 54 and 55. The Court referred to that principle more recently still in Case C-104/10 Kelly [2011] ECR I-0000, paragraph 35.

(9) – Emphasis added.

(10)  – The various stages of the return procedure and the order in which they take place have been exhaustively described in paragraphs 34 to 40 of the judgment in El Dridi (cited in footnote 2 above).

(11)  – Delivered on 1 April 2011 (paragraph 32).

(12)  – I have doubts as to such a necessity in the case of Mr Achughbabian. He was already the subject-matter of a prefectoral order of 27 January 2009 which, in my opinion, might be regarded as a return decision within the meaning of Article 6(1) of Directive 2008/115.