Court of Justice: AG opinion in Case C-290/14 Celaj, 28 April 2015

Thursday, April 30, 2015

Case C-290/14 (Area of freedom, security and justice — Directive 2008/115/EC — Return of an illegally staying third-country national — Articles 15 and 16 — National legislation providing for a prison sentence on an illegally staying third-country national in the event of re-entry — Compatibility)

The Advocate General Szpunar delivered an opinion on a question referred to the Court of Justice of the European Union by the Court of Florence. The referred case concerned an Albanian national, Mr Celaj, who had been given a suspended sentence in Italy in 2011 for attempted robbery, and later being given deportation order accompanied by a ban on re-entry to Italy for three years. Mr Celaj voluntarily left the national territory in 2012, only to subsequently re-enter, where he was apprehended in 2014. The public prosecutor sought a sentence of imprisonment for this breach of the re-entry ban.

The Court of Florence asked the CJEU to rule on the compatibility of a national criminal law sanction with the provisions of Directive 2008/115 on the repatriation of third-country nationals unlawfully residing in an EU country. It was noted that, with the aim of the directive (as stated in Article 1) being to return illegally staying third-country nationals, Member States are under a constant duty to begin a return procedure, and to issue a return decision; a measure penalising non-compliance with an entry ban cannot jeopardise the overriding objective, which is to say the imprisonment cannot jeopardise a future return procedure.

With the imprisonment of a person ultimately delaying a future return, Advocate-General Szpunar concluded that the directive must be interpreted as precluding a Member State from imprisoning a third-country national solely on the basis of that person re-entering the territory of that Member State in defiance of an entry ban that had been issued with a return decision under the directive.

30 April 2015

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