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.
The Court of Justice of the European Union (CJEU) issued a decision on October 1, 2015, in the case of Skerdjan Celaj (C-290/14) that once again addressed the relationship between immigration and criminal law. Specifically, the court examined whether national criminal penalties for unlawful migration align with the EU Returns Directive. The court had previously considered whether this directive permits states to utilize imprisonment (in the cases of El Dridi and Achughbabian, respectively) or house arrest (Sagor) as criminal penalties—distinct from administrative detention, which the directive explicitly regulates—for not complying with a return order or for unlawful presence. In Celaj, the Luxembourg judges were tasked with determining if a prison sentence for violating a re-entry ban aligned with the Returns Directive.
Article 3(6) of the directive defines an “entry ban” as 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.”
The Case
Italian police arrested Mr. Celaj in August 2011 for attempted robbery. He received a removal order and a three-year entry ban in April 2012, leaving Italy roughly five months later. However, Mr. Celaj re-entered Italy and was apprehended by police in February 2014. Consequently, the public prosecutor initiated criminal proceedings against him, seeking an eight-month prison sentence for violating the entry ban. The presiding District Florence Court chose to pause the proceedings and request a preliminary ruling from the Luxembourg Court. The referring court inquired whether the Returns Directive prohibits national laws that penalize re-entry violations with prison terms of up to four years. The Court determined that it does not.
The Court chose not to adopt the April 2015 Opinion of Advocate General (AG) Szpunar. The AG’s opinion emphasized the Returns Directive’s effectiveness and its primary objective: returning undocumented non-EU nationals. These points had been raised by the Court in previous cases concerning the relationship between national criminal penalties and the directive. In El Dridi (§ 58), the Court decided that imprisoning someone for failing to depart during the voluntary departure period, as a criminal penalty, conflicted with the Returns Directive. Similarly, in Achughbabian (§ 45), it found that the directive also prevented imprisonment for unlawful presence as a criminal penalty if imposed before or during removal proceedings. The Court’s reasoning in both instances was that a prison sentence as a criminal penalty would hinder the individual’s removal, thus undermining the directive’s purpose (El Dridi, § 59; Achughbabian, § 45). The Sagor ruling (§ 45) demonstrates that not only imprisonment but also house arrest during return proceedings as a criminal penalty could delay deportation and should be avoided. Consequently, the AG urged the Court to maintain its established case law and declare imprisonment as a criminal penalty for violating an entry ban incompatible with the directive, as it would hinder the individual’s return (§ 6).
However, the Court decided that the Returns Directive does not prevent national laws from imposing prison sentences as criminal penalties on non-EU nationals who illegally re-enter a country by violating an entry ban (§25 and 33). The CJEU acknowledged that the directive’s objective would be compromised if criminal prosecution leading to imprisonment were to delay removal, as determined in El Dridi, Achughbabian, and Sagor (§ 26). Nevertheless, the Court found that the Celaj case differed “clearly” from El Dridi and Achughbabian. This distinction, according to the Court, stemmed from the fact that the non-citizens in El Dridi and Achughbabian, unlike Mr. Celaj, were undergoing an initial return procedure (§ 28). Additionally, the Court stated that, consistent with its ruling in Achughbabian, the directive doesn’t preclude criminal penalties for migrants who remain unlawfully in a member state after undergoing a return procedure (§ 29).
Comments
Were the circumstances in Celaj so “clearly distinct” from those in El Dridi and Achughbabian to warrant such a different outcome? Is it fundamentally significant that those cases involved a first return procedure? Each return procedure under the directive essentially aims for the same result: the prompt removal of the undocumented non-EU national. Therefore, whether the return results from unlawful entry or re-entry seems immaterial.
Article 6(1) of the directive mandates that member states issue a return decision to any irregularly residing migrant, with some exceptions. The AG emphasized that this obligation is both persistent and continuous (§ 42, 49, and 50). This means that every time a non-EU national is found unlawfully present within a state’s territory, the authorities should initiate a return procedure by issuing a return decision. Therefore, according to the directive, a non-EU national who illegally re-enters a member state should be subject to a new return decision rather than criminal proceedings that might postpone their eventual removal. This interpretation is further supported by the Court’s ruling in Achughbabian (§ 45), which maintained that states must carry out removals swiftly. Therefore, they shouldn’t pursue criminal proceedings resulting in custodial penalties before enacting a return decision—or even before issuing one.
Surprisingly, the CJEU didn’t consider whether the criminal proceedings against Mr. Celaj would hinder his return. This omission contradicts the Court’s established case law, which prioritizes the effectiveness of the procedures outlined in the directive (El Dridi, § 55; Achughbabian, § 39; Sagor, § 32). It seems likely that Mr. Celaj will be issued a return decision after serving his prison sentence. This criminal penalty will inevitably delay his return, undermining the Returns Directive’s objective.
Similarly, the second, somewhat supplementary argument presented by the Luxembourg judges is not entirely persuasive. It’s true that, as per the second indent of the Achughbabian ruling (§ 51), states can impose criminal prison sentences on non-EU nationals who remain unlawfully in the member state despite undergoing a return procedure. However, the AG pointed out (§ 61) that to align with the judgment’s main point, this conclusion should solely apply to situations where authorities failed to return the individual, who then continues to reside in the state. Consequently, the second indent in the Achughbabian judgment should not apply to Celaj. In this case, the non-EU national left the country, fulfilling the return procedure’s objective. His illegal re-entry should subject him to a new return procedure.
The Celaj judgment seems to deviate from the CJEU’s established jurisprudence concerning the interaction between domestic criminal penalties and the effectiveness of the Returns Directive’s return policy. The Court based its decision on a seemingly clear distinction between return proceedings for unlawful entry and those following re-entry that violates an entry ban. However, the language of the Returns Directive, reinforced by its objective consistently emphasized in the Court’s prior decisions, does not support such a distinction. The European Commission and intervening governments raised this “distinction” argument during the proceedings. They argued that re-entry cases differ because criminal sanctions could discourage migrants from violating re-entry bans (AG’s Opinion, § 46). Therefore, the “distinction” argument—central to the Court’s conclusion—rests on states’ deterrence-focused concerns rather than considerations based on the Returns Directive’s provisions and purpose. The Celaj ruling, therefore, seems to compromise the directive’s effectiveness to grant states discretion in applying domestic criminal laws to deter and penalize migrants for violating re-entry bans.
What is the nature of the entry ban that states are now explicitly allowed to punish with imprisonment? As previously mentioned, Article 3(6) of the directive defines an entry ban as prohibiting re-entry to the host state (or other member states) for a specific period. Article 11(1) compels states to impose an entry ban on non-EU nationals who were either denied the voluntary departure option or failed to comply with a return decision. Given the directive’s broad conditions for refusing a voluntary departure period (Article 7(4); for case law analysis, see here) and its lack of explicit prohibition against states issuing return decisions based on non-refoulement, family, or private life grounds (the directive only permits states to grant residency for humanitarian or other reasons, as per Article 6(4)), Article 11(1) may effectively lead to the systematic imposition of entry bans. This concern is amplified by the same provision allowing states to apply a re-entry ban in “other cases.”
In practice, as demonstrated by the European Commission’s Evaluation on the application of the Returns Directive, nearly 40% of countries bound by the directive automatically apply entry bans to all return decisions. A recent European Migration Network study, Good Practices in the return and reintegration of irregular migrants, illustrates the widespread use of entry bans. In 2013, over 125,000 entry bans were imposed within the EU. Considering the total number of return decisions issued that year (Eurostat), these numbers indicate that member states frequently attach entry bans to return decisions, including in Greece (almost 100%), Poland (80%), and Sweden (70%). Entry bans, therefore, seem to be systematically applied in practice.
States can choose not to impose or to withdraw an entry ban based on humanitarian or other considerations (article 11(3)). However, they are not obligated to waive this requirement in such cases—it remains their prerogative. While the directive clarifies that entry bans shouldn’t impede the right to international protection (Article 11(5)), this assertion should translate into a clear obligation for states to refrain from imposing the ban if it could jeopardize protection from non-refoulement. The severity of the entry ban is compounded by its duration. The directive permits a five-year entry ban (article 11(2)). The aforementioned Commission study highlights that most states issue entry bans for this maximum period. Furthermore, states may impose a longer ban (with no time limit specified by the directive) if they believe the individual poses a serious threat to public policy or national security (Article 11(2)).
Consequently, a majority of non-EU nationals subject to return could potentially be banned from re-entering the host state—or even the entire EU if the entry ban is recorded in the Schengen Information System (SIS)—for extended periods. An entry ban is, therefore, a harsh, coercive measure that serves as a deterrent in itself and might conflict with migrants’ fundamental rights. It’s conceivable that a non-EU national might be compelled to re-enter due to family ties disrupted by deportation or changes in their home country’s situation. While states can lift an entry ban, they are not obligated to do so. Imposing a prison sentence for breaching an entry ban, as permitted by the Celaj ruling, seems excessive and unnecessary. States have other means to address such violations, such as extending an existing ban. More broadly, criminalizing immigration law violations risks blurring the line between (non-punitive) immigration and criminal law, potentially harming migrants and placing an undue burden on the criminal justice system.
Barnard & Peers: chapter 26
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