The Cjeu’S Ruling Inwards Celaj: Criminal Penalties, Entry Bans As Well As The Returns Directive

By Izabella Majcher, Associate Researcher at Global Detention Project in addition to PhD candidate inward International Law at the Graduate Institute of International in addition to Development Studies is Geneva.

In its ruling inward the Skerdjan Celaj representative (C-290/14), rendered on 1^st Oct 2015, the Court of Justice of the European Union (CJEU) addressed i time once again the relation betwixt immigration in addition to criminal law in addition to inward item the compatibility of national penal measures imposed every bit a penalty for irregular migration amongst the EU Returns Directive. In the previous cases touching upon this issue, the Court assessed whether the Directive allowed states to penalize non-compliance amongst a homecoming guild or irregular rest itself amongst imprisonment (El Dridi and Achughbabian, respectively) in addition to amongst abode detention (Sagor) every bit a criminal law penalty (as distinct from administrative law detention, which is expressly regulated past times the Directive). In turn, inward Celaj the Grand Duchy of Luxembourg judges were requested to consider whether a criminal law judgement of imprisonment imposed for a breach of a re-entry ban was compatible amongst the Returns Directive.

As defined inward Article 3(6) of the Directive, an “entry ban” agency an “administrative or judicial determination or human activity prohibiting entry into in addition to rest on the territory of the Member States for a specified period, accompanying a homecoming decision.”

The Case

Mr Celaj was arrested past times Italian police push clit inward August 2011 for attempted robbery. In Apr 2012 he was issued a removal guild accompanied past times a three-year entry ban in addition to left Italian territory or so v months later. Subsequently Mr Celaj re-entered Italy in addition to was apprehended past times the police push clit inward Feb 2014. The populace prosecutor so brought criminal law proceedings against him in addition to sought a term of imprisonment of 8 months for the breach of the entry-ban. The District Florence Court, earlier whom the proceedings were brought, decided to rest the proceedings in addition to refer the enquiry to the Grand Duchy of Luxembourg Court for a preliminary ruling. The referring courtroom asked the CJEU whether the Returns Directive precludes domestic legislation penalizing re-entry inward breach of an entry ban amongst a prison theater judgement upwardly to 4 years. The Court found that it does not.

The Court did non follow the Opinion of Advocate General (AG) Szpunar, issued inward Apr 2015. The AG based his Opinion on the effectiveness in addition to the principal objective of the Returns Directive, which is the homecoming of undocumented non-EU citizens. These arguments had been developed past times the Court inward a line of case-law addressing the relation betwixt domestic penal sanctions in addition to the Directive. Indeed, inward El Dridi (§ 58) the Court ruled that imprisonment every bit a criminal law penalty for the failure to move out the province during the voluntary divergence menstruum was non compatible amongst the Returns Directive. In Achughbabian (§ 45) it found that the Directive besides precluded imprisonment every bit a criminal law penalty for irregular rest itself if ordered prior to starting removal proceedings or during such proceedings. The underlying justification of the Court’s conclusions inward both cases was that a term of imprisonment every bit a criminal law penalty would delay the removal of the individual concerned in addition to thence jeopardize the objective pursued past times the Directive (El Dridi, § 59; Achughbabian, § 45). The ruling inward Sagor (§ 45) shows that non solely prison theater sentences but fifty-fifty abode detention during homecoming proceedings every bit a criminal law penalty risks delaying deportation in addition to thence should non last imposed. The AG thence invited the Court to follow its well-established case-law in addition to declare that imprisonment for a breach of entry ban every bit a criminal law penalty is incompatible amongst the Directive because it would delay homecoming of the individual concerned (§ 6).

Yet, the Court ruled that the Returns Directive does non prevent domestic legislation which provides for a prison theater judgement every bit a criminal law penalty for non-EU citizens who unlawfully re-enter the province inward breach of an entry ban (§25 in addition to 33). The CJEU did reiterate that the objective of the Directive would last undermined if removal would last delayed past times a criminal prosecution leading to a term of imprisonment, every bit ruled inward El Dridi, Achughbabian, in addition to Sagor (§ 26). However, it found that the circumstances inward the Celaj case were “clearly distinct” from those inward El Dridi and Achughbabian. This distinction, inward the Court’s opinion, was due to the fact that, dissimilar Mr Celaj, the non-citizens concerned inward El Dridi and Achughbabian were dependent plain to a starting fourth dimension homecoming physical care for (§ 28). The Court besides added that, inward line amongst the instant indent of its ruling inward Achughbabian, the Directive does non prevent penal sanctions every bit a criminal law penalty to last imposed on a migrant who has been dependent plain to a homecoming physical care for but stays inward an irregular vogue inward the fellow member province (§ 29).

Comments

Were the circumstances inward Celaj so “clearly distinct” from those inward El Dridi in addition to Achughbabian to justify such a different conclusion? Does it fundamentally thing that those cases dealt amongst a starting fourth dimension homecoming procedure? Every homecoming physical care for regulated past times the Directive has essentially the same destination – the swift removal of the non-EU citizen concerned. It appears thence irrelevant whether homecoming is pursued because of irregular entry or irregular re-entry.

Under Article 6(1) of the Directive fellow member states are required to number a homecoming determination to every migrant inward irregular situation, dependent plain to or so exceptions. As highlighted past times the AG (§ 42, 49, in addition to 50), this duty is persistent in addition to continuous. This agency that each fourth dimension a non-EU citizen finds himself or herself on the State territory without permission, the authorities should start a homecoming physical care for past times issuing a homecoming decision. Thus, inward line amongst the rules nether the Directive, a non-EU citizen who has re-entered the Member State unlawfully should last liable to a novel homecoming determination rather than criminal proceedings which may postpone his or her ultimate removal. This finding is besides supported past times the Court’s ruling inward Achughbabian (§ 45) where it held that the obligation incumbent on states to behaviour removal shall last fulfilled every bit presently every bit possible in addition to thence states should non send out criminal proceedings involving custodial penalties non solely prior to the implementation of the homecoming decision, but besides prior to the adoption of such a decision.

Strikingly, the CJEU did non consider at all whether criminal proceedings against Mr Celaj would delay his return. This omission is hardly consistent amongst the Court’s good established case-law which attaches pivotal importance to the effectiveness of the procedures regulated nether the Directive (El Dridi, § 55; Achughbabian, § 39; Sagor, § 32). It is easily foreseeable that after serving his prison theater sentence, Mr Celaj volition last issued amongst a homecoming decision. The term of imprisonment every bit a criminal law penalty volition inevitably delay his homecoming in addition to thence jeopardize the real objective of the Returns Directive.

Likewise, the second, somehow auxiliary, declaration advanced past times the Grand Duchy of Luxembourg judges is non wholly convincing. True, inward line amongst the instant indent of the ruling inward Achughbabian (§ 51) states may impose a criminal law prison theater judgement on a non-EU citizen to whom a homecoming physical care for has been applied but who stays inward an irregular vogue inward the Member State. However, every bit pointed out past times the AG (§ 61), to last compatible amongst the principal job of the ruling, this conclusion should solely encompass situations where authorities did non succeed inward returning the individual concerned, who so continues to rest on the state’s territory. The instant indent inward the judgment inward Achughbabian should thence accept no bearing on Celaj where the non-EU citizen concerned left the country, thence homecoming proceedings reached their goal. Following his irregular re-entry, he should last liable to a novel homecoming procedure.

The judgment inward Celaj appears non consistent amongst the CJEU’s well-established jurisprudence on the interplay betwixt domestic penal sanctions in addition to the effectiveness of homecoming policy every bit seat downwardly inward the Returns Directive. The Court relied on an apparent clear distinction betwixt homecoming proceedings imposed for irregular entry in addition to subsequent re-entry inward breach of an entry ban. As discussed above, the wording of the provisions of the Returns Directive, supported past times the underlying objective of the Directive repetitively stressed inward the Court’s previous rulings, does non warrant finding such a distinction. The “distinction” declaration had been advanced past times the European Commission in addition to intervening governments during the proceedings. They stressed that the circumstances inward re-entry cases are distinct because penal sanctions could last imposed to dissuade migrants from breaching re-entry bans (AG’s Opinion, § 46). So the “distinction” declaration – which was fundamental to the Court’s conclusion - relies on states’ deterrence-oriented concerns rather than considerations based on the provisions in addition to objective of the Returns Directive. The ruling inward Celaj seems thence to compromise on the effectiveness of the Directive inward guild to accord discretion to states to apply their domestic criminal provisions to deter in addition to punish migrants for breaching re-entry ban.

What is the nature of the entry ban whose breach states are straight off explicitly allowed to punish amongst criminal law imprisonment? As noted above, Article 3(6) of the Directive defines an entry ban every bit a prohibition of re-entry to the host province (or other Member States) for a specified menstruum of time. In Article 11(1) the Directive obliges states to impose an entry ban on a non-EU citizen who has non been granted the possibility of voluntary divergence or has non complied amongst a homecoming decision. Since the Directive provides for wide circumstances for refusal of a voluntary divergence menstruum (Article 7(4); run into give-and-take of the representative law on this number here) in addition to does non explicitly prohibit states from issuing a homecoming determination on non-refoulement in addition to line of piece of work solid unit of measurement or individual life grounds (the Directive but allows states grant a residence permit on humanitarian or other reasons, inward Article 6(4)), inward practise Article 11(1) may entail that entry bans are imposed inward a systematic way. This opportunity is amplified past times the same provision every bit it allows states to apply a ban on re-entry besides inward “other cases.”

In practice, every bit the Evaluation on the application of the Returns Directive, commissioned past times the European Commission, shows, the legislation of around twoscore per centum of the countries saltation past times the Directive provides for an automatic application of entry bans on all homecoming decisions. Influenza A virus subtype H5N1 recent European Migration Network’s study Good Practices inward the homecoming in addition to reintegration of irregular migrants demonstrates the scale of the job of entry bans. In 2013 to a greater extent than than 125,000 entry bans were imposed inward the EU. Compared to the sum number of homecoming decisions that twelvemonth (see Eurostat), these figures evince that the fellow member states accompany a considerable proportion of homecoming decisions amongst entry bans, including Hellenic Republic (almost 100 %), Poland (80 %), or Sweden (70 %). It appears thence that entry bans are systematically applied inward practice.

States are gratuitous non to impose or withdraw an entry ban for humanitarian or other reasons (article 11(3)). They are nonetheless non obligated to waive the entry ban requirement inward such cases - it lies inside their discretion. While the Directive clarifies that entry bans shall non prejudice the correct to international protection (Article 11(5)), this assertion should last translated into a clear obligation on states non to impose the ban where the protection from non-refoulement could last impaired. The severity of this entry ban is farther strengthened past times its length. The Directive allows a five-year duration of an entry ban (article 11(2)). The to a higher identify mentioned Commission study highlights that the bulk of states number entry bans for this maximum permitted menstruum of time. In addition, states may apply a longer ban (the fourth dimension menstruum of which is non limited past times the Directive), if they approximate that the individual concerned represents a serious threat to populace policy or national safety (Article 11(2)).

Thus, potentially the bulk of non-EU citizens liable to homecoming are prohibited for prolonged periods to re-enter the host province or fifty-fifty the whole EU, if the entry ban has been registered inward the Schengen Information System (SIS). An entry ban is thence a harsh in addition to coercive measure, which is a deterrent inward itself in addition to potentially conflicts amongst migrants’ fundamental rights. It cannot last ruled out that a non-EU citizen volition last obliged to re-enter, where prompted past times his line of piece of work solid unit of measurement links, disrupted past times deportation, or changes inward the province of affairs inward his province of origin. While, every bit noted above, states may withdraw an entry ban, they are nevertheless non obliged to create so. Imposition of a criminal law prison theater judgement for breach of an entry ban, every bit permitted inward Celaj, appears thence disproportionate in addition to unnecessary. States may job other available methods to punish this breach, such every bit an extension of an existing ban. More generally, criminalization of breaches of (administrative) immigration law risks creating a conflation betwixt (non-punitive) immigration law in addition to criminal law, amongst negative consequences for migrants, in addition to an undue overburden to the criminal justice system.

Barnard & Peers: chapter 26

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