CJEU - C-329/11 Achughbabian Alexandre Achughbabian v Préfet du Val-de-Marne

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Country of Applicant: 
Date of Decision: 
Court Name: 
Grand Chamber of the CJEU

The case concerned whether the Returns Directive precludesnational legislation providing for the imposition of a sentence of imprisonment on a third-country national on the sole ground of their illegal entry or residence in national territory.


The Applicant entered France in 2008 and was the subject of a decision by the Prefect in 2009, ordering him to leave French territory and setting a period of one month for a voluntary departure. Following his refusal to leave France, a fresh return decision was adopted in June 2011, this time taking the form of a deportation order not accompanied by a period for voluntary departure. In addition, the French authorities ordered that he be placed in police custody and then in detention for an unlawful stay. He challenged these measures before the French courts.

The Paris Court of Appeal, referred this dispute to the CJEU and asked whether Directive 2008/115 preclude national legislation from imposing a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?

Decision & Reasoning: 

The Court noted that the ‘Return Directive’ is not designed to harmonise in their entirety the national rules on the stay of foreign nationals. Therefore, it does not preclude national legislation from classifying an illegal stay by a third-country national as an offence and laying down penal sanctions, including a term of imprisonment.

It also does not prevent a third-country national being placed in detention with a view to determining whether or not his stay is lawful, but when making this assessment national authorities are required  to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned. Once it has been established that the stay is illegal, these authorities must, in principle, adopt a return decision.

The Court examined whether the French legislation was in conformity with the Returns Directive, in so far as it is capable of leading to an imprisonment in the course of the return procedure. The Court stated that Member States must adjust their criminal legislation in the area of illegal immigration and illegal stays in order to ensure compliance with Union law. Therefore States cannot apply criminal legislation capable of jeopardizing the realisation of the aims pursued by the Return Directive, thus depriving it of its effectiveness.

The terms ‘measures’ and ‘coercive measures’ contained in the Return Directive refer to any intervention which leads, in an effective and proportionate manner, to the removal of the person concerned. Detention of the person concerned, for a maximum duration of 18 months, is permitted only for the purposes of preparing and permitting the removal. The imposition and implementation of a sentence of imprisonment during the course of the return procedure does not contribute to the realisation of the removal which that procedure pursues. Such imprisonment is liable to delay the return and thereby undermines the effectiveness of the Directive. It does not therefore constitute a ‘measure’ or ‘coercive measure’ within the meaning of the Directive.

The Court concludes that Union law precludes national legislation permitting the imprisonment of a third country national staying illegally who has not been subject to the coercive measures referred to in the Directive and has not, in the event of placing in detention with a view to the application of the removal procedure, reached the expiry of the maximum duration of that detention.

On the other hand, the Member States may adopt or maintain criminal provisions, governing, in compliance with the Return Directive and its objective, in situations where the coercive measures have not enabled the removal of an illegally staying third-country national to take place.


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 legislation of a Member State laying down criminal penalties for illegal stays, in so far as that legislation permits the imprisonment of a third-country national who, though staying illegally in the territory of the said Member State and not being willing to leave that territory voluntarily, has not been subject to the coercive measures referred to in Article 8 of that directive and has not, being placed in detention with a view to the preparation and carrying out of his removal, yet reached the end of the maximum term of that detention; and


  • not precluding such legislation in so far as the latter permits the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in that territory with no justified ground for non-return.
Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)