By Izabella Majcher, Associate Researcher at Global Detention Project and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.
In its ruling in the Skerdjan Celaj case (C-290/14), rendered on 1st October 2015, the Court of Justice of the European Union (CJEU) addressed once again the relation between immigration and criminal law and in particular the compatibility of national penal measures imposed as a punishment for irregular migration with the EU Returns Directive. In the previous cases touching upon this issue, the Court assessed whether the Directive allowed states to penalize non-compliance with a return order or irregular stay itself with imprisonment (El Dridi and Achughbabian, respectively) and with home detention (Sagor) as a criminal law penalty (as distinct from administrative law detention, which is expressly regulated by the Directive). In turn, in Celaj the Luxembourg judges were requested to consider whether a criminal law sentence of imprisonment imposed for a breach of a re-entry ban was compatible with the Returns Directive.
As defined in Article 3(6) of the Directive, an “entry ban” means an “administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision.”
Mr Celaj was arrested by Italian police in August 2011 for attempted robbery. In April 2012 he was issued a removal order accompanied by a three-year entry ban and left Italian territory some five months later. Subsequently Mr Celaj re-entered Italy and was apprehended by the police in February 2014. The public prosecutor then brought criminal law proceedings against him and sought a term of imprisonment of eight months for the breach of the entry-ban. The District Florence Court, before whom the proceedings were brought, decided to stay the proceedings and refer the question to the Luxembourg Court for a preliminary ruling. The referring court asked the CJEU whether the Returns Directive precludes domestic legislation penalizing re-entry in breach of an entry ban with a prison sentence up to four years. The Court found that it does not.
The Court did not follow the Opinion of Advocate General (AG) Szpunar, issued in April 2015. The AG based his Opinion on the effectiveness and the main objective of the Returns Directive, which is the return of undocumented non-EU citizens. These arguments had been developed by the Court in a line of case-law addressing the relation between domestic penal sanctions and the Directive. Indeed, in El Dridi (§ 58) the Court ruled that imprisonment as a criminal law penalty for the failure to leave the country during the voluntary departure period was not compatible with the Returns Directive. In Achughbabian (§ 45) it found that the Directive also precluded imprisonment as a criminal law penalty for irregular stay itself if ordered prior to starting removal proceedings or during such proceedings. The underlying justification of the Court’s conclusions in both cases was that a term of imprisonment as a criminal law penalty would delay the removal of the person concerned and thus jeopardize the objective pursued by the Directive (El Dridi, § 59; Achughbabian, § 45). The ruling in Sagor (§ 45) shows that not only prison sentences but even home detention during return proceedings as a criminal law penalty risks delaying deportation and thus should not be imposed. The AG thus invited the Court to follow its well-established case-law and declare that imprisonment for a breach of entry ban as a criminal law penalty is incompatible with the Directive because it would delay return of the person concerned (§ 6).
Yet, the Court ruled that the Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban (§25 and 33). The CJEU did reiterate that the objective of the Directive would be undermined if removal would be delayed by a criminal prosecution leading to a term of imprisonment, as ruled in El Dridi, Achughbabian, and Sagor (§ 26). However, it found that the circumstances in the Celaj case were “clearly distinct” from those in El Dridi and Achughbabian. This distinction, in the Court’s opinion, was due to the fact that, unlike Mr Celaj, the non-citizens concerned in El Dridi and Achughbabian were subject to a first return procedure (§ 28). The Court also added that, in line with the second indent of its ruling in Achughbabian, the Directive does not preclude penal sanctions as a criminal law penalty to be imposed on a migrant who has been subject to a return procedure but stays in an irregular manner in the member state (§ 29).
Were the circumstances in Celaj so “clearly distinct” from those in El Dridi and Achughbabian to justify such a different conclusion? Does it fundamentally matter that those cases dealt with a first return procedure? Every return procedure regulated by the Directive has essentially the same goal – the swift removal of the non-EU citizen concerned. It appears thus irrelevant whether return is pursued because of irregular entry or irregular re-entry.
Under Article 6(1) of the Directive member states are required to issue a return decision to every migrant in irregular situation, subject to some exceptions. As highlighted by the AG (§ 42, 49, and 50), this duty is persistent and continuous. This means that each time a non-EU citizen finds himself or herself on the State territory without permission, the authorities should start a return procedure by issuing a return decision. Thus, in line with the rules under the Directive, a non-EU citizen who has re-entered the Member State unlawfully should be liable to a new return decision rather than criminal proceedings which may postpone his or her ultimate removal. This finding is also supported by the Court’s ruling in Achughbabian (§ 45) where it held that the obligation incumbent on states to conduct removal shall be fulfilled as soon as possible and thus states should not carry out criminal proceedings involving custodial penalties not only prior to the implementation of the return decision, but also prior to the adoption of such a decision.
Strikingly, the CJEU did not consider at all whether criminal proceedings against Mr Celaj would delay his return. This omission is hardly consistent with the Court’s well established case-law which attaches pivotal importance to the effectiveness of the procedures regulated under the Directive (El Dridi, § 55; Achughbabian, § 39; Sagor, § 32). It is easily foreseeable that after serving his prison sentence, Mr Celaj will be issued with a return decision. The term of imprisonment as a criminal law penalty will inevitably delay his return and thus jeopardize the very objective of the Returns Directive.
Likewise, the second, somehow auxiliary, argument advanced by the Luxembourg judges is not wholly convincing. True, in line with the second indent of the ruling in Achughbabian (§ 51) states may impose a criminal law prison sentence on a non-EU citizen to whom a return procedure has been applied but who stays in an irregular manner in the Member State. However, as pointed out by the AG (§ 61), to be compatible with the main part of the ruling, this conclusion should only cover situations where authorities did not succeed in returning the person concerned, who then continues to stay on the state’s territory. The second indent in the judgment in Achughbabian should thus have no bearing on Celaj where the non-EU citizen concerned left the country, thus return proceedings reached their goal. Following his irregular re-entry, he should be liable to a new return procedure.
The judgment in Celaj appears not consistent with the CJEU’s well-established jurisprudence on the interplay between domestic penal sanctions and the effectiveness of return policy as laid down in the Returns Directive. The Court relied on an apparent clear distinction between return proceedings imposed for irregular entry and subsequent re-entry in breach of an entry ban. As discussed above, the wording of the provisions of the Returns Directive, supported by the underlying objective of the Directive repetitively stressed in the Court’s previous rulings, does not warrant finding such a distinction. The “distinction” argument had been advanced by the European Commission and intervening governments during the proceedings. They stressed that the circumstances in re-entry cases are distinct because penal sanctions could be imposed to dissuade migrants from breaching re-entry bans (AG’s Opinion, § 46). So the “distinction” argument – which was central to the Court’s conclusion - relies on states’ deterrence-oriented concerns rather than considerations based on the provisions and objective of the Returns Directive. The ruling in Celaj seems thus to compromise on the effectiveness of the Directive in order to accord discretion to states to apply their domestic criminal provisions to deter and punish migrants for breaching re-entry ban.
What is the nature of the entry ban whose breach states are now explicitly allowed to punish with criminal law imprisonment? As noted above, Article 3(6) of the Directive defines an entry ban as a prohibition of re-entry to the host state (or other Member States) for a specified period of time. In Article 11(1) the Directive obliges states to impose an entry ban on a non-EU citizen who has not been granted the possibility of voluntary departure or has not complied with a return decision. Since the Directive provides for broad circumstances for refusal of a voluntary departure period (Article 7(4); see discussion of the case law on this issue here) and does not explicitly prohibit states from issuing a return decision on non-refoulement and family or private life grounds (the Directive merely allows states grant a residence permit on humanitarian or other reasons, in Article 6(4)), in practice Article 11(1) may entail that entry bans are imposed in a systematic way. This risk is amplified by the same provision as it allows states to apply a ban on re-entry also in “other cases.”
In practice, as the Evaluation on the application of the Returns Directive, commissioned by the European Commission, shows, the legislation of almost 40 percent of the countries bound by the Directive provides for an automatic application of entry bans on all return decisions. A recent European Migration Network’s study Good Practices in the return and reintegration of irregular migrants demonstrates the scale of the use of entry bans. In 2013 more than 125,000 entry bans were imposed in the EU. Compared to the total number of return decisions that year (see Eurostat), these figures evince that the member states accompany a considerable proportion of return decisions with entry bans, including Greece (almost 100 %), Poland (80 %), or Sweden (70 %). It appears thus that entry bans are systematically applied in practice.
States are free not to impose or withdraw an entry ban for humanitarian or other reasons (article 11(3)). They are however not obligated to waive the entry ban requirement in such cases - it lies within their discretion. While the Directive clarifies that entry bans shall not prejudice the right to international protection (Article 11(5)), this assertion should be translated into a clear obligation on states not to impose the ban where the protection from non-refoulement could be impaired. The severity of this entry ban is further strengthened by its length. The Directive allows a five-year duration of an entry ban (article 11(2)). The above mentioned Commission study highlights that the majority of states issue entry bans for this maximum permitted period of time. In addition, states may apply a longer ban (the time period of which is not limited by the Directive), if they judge that the person concerned represents a serious threat to public policy or national security (Article 11(2)).
Thus, potentially the majority of non-EU citizens liable to return are prohibited for prolonged periods to re-enter the host state or even the whole EU, if the entry ban has been registered in the Schengen Information System (SIS). An entry ban is thus a harsh and coercive measure, which is a deterrent in itself and potentially conflicts with migrants’ fundamental rights. It cannot be ruled out that a non-EU citizen will be obliged to re-enter, where prompted by his family links, disrupted by deportation, or changes in the situation in his country of origin. While, as noted above, states may withdraw an entry ban, they are nevertheless not obliged to do so. Imposition of a criminal law prison sentence for breach of an entry ban, as permitted in Celaj, appears thus disproportionate and unnecessary. States may use other available methods to punish this breach, such as an extension of an existing ban. More generally, criminalization of breaches of (administrative) immigration law risks creating a conflation between (non-punitive) immigration law and criminal law, with negative consequences for migrants, and an undue overburden to the criminal justice system.
Barnard & Peers: chapter 26
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