Summaries of important judgments
May 2012
C-329/11 Alexandre Achughbabian, judgment of 6 December 2011
Illegally staying third-country nationals in a Member State cannot have a sentence of
imprisonment imposed on them during the return procedure provided for by Directive
2008/115/EC.
Directive 2008/115/EC (known as the ‘Return Directive’) establishes common standards and procedures in
Member States for removing from their territory illegally staying third-country nationals. It provides for
the adoption, in relation to the latter, of a return decision which in principle opens up a period for
voluntary return. If this fails to occur, Member States must proceed to enforce the removal of the person
concerned, using the least coercive measures possible. It is only if the removal is liable to be jeopardised
that the Member State may place the person concerned in detention for a maximum period of 18 months.
In the present case, Mr Achughbabian, an Armenian national, entered France in 2008. He 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, asked the Court of Justice whether the ‘Return Directive’
precludes the French legislation which imposes the punishment of one year’s imprisonment and a fine of
EUR 3 750 on third-country nationals who stay unlawfully in France, for a period of more than three
months, without holding the required documents and visas, and notably a residence card.
The Court first points out 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 does not preclude either a third-country national being placed in detention with a view to determining
whether or not his stay is lawful. However, the Court specifies that the national authorities are required to
act with diligence and take a position without delay. Once it has been established that the stay is illegal,
these authorities must, in principle, adopt a return decision.
Secondly, the Court examines the conformity of the French legislation with the Directive, in so far as it is
capable of leading to an imprisonment in the course of the return procedure.
First of all, it recalls its El Dridi case-law (C-61/11 PPU), according to which Member States must adjust
their criminal legislation in the area of illegal immigration and illegal stays in order to ensure compliance
http://ec.europa.eu/dgs/legal_service/arrets/index_en.htm
with Union law. Those States cannot therefore apply criminal legislation capable of imperilling the
realisation of the aims pursued by the Return Directive, thus depriving it of its effectiveness.
The Court points out in this respect that the expressions ‘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. According to the
Court, 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. On the
contrary, 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 thirdcountry 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, the situation in which coercive measures have not
enabled the removal of an illegally staying third-country national to take place.