The directive on the return of illegal immigrants does not preclude a Member State from punishing an irregular stay with a fine which may, under certain conditions, be replaced by an expulsion order

The Court of Justice of the European Union stated on a Press Release, on December 6 of this year. The Press Release comes as a result of a judgment rendered in the case of Mr. Sagor and Italy.

Mr. Sagor, who claims to have been born in Bangladesh, is a street vendor of no fixed abode in Italy. As he did not possess a residence permit, in 2010 he was summoned before the Tribunale di Rovigo (District Court, Rovigo, Italy) for the offence of illegal stay.

Having some doubts as to the compatibility of the Italian legislation with EU law, the Italian court asked the Court of Justice whether the return directive precludes such national legislation.

In its judgment delivered on December 6, the European Court of Justice observes as a preliminary point that the return directive is not designed to harmonize in their entirety the rules of the Member States on the stay of foreign nationals and thus does not preclude the law of a Member State from classifying an illegal stay as an offence and laying down criminal sanctions to deter and penalize such an infringement.

The Court, upholds its case-law pursuant to which the return directive would be undermined if, after establishing that a third-country national is staying illegally, the Member State in question were to preface the adoption or implementation of the return decision with a criminal prosecution which could lead to a term of imprisonment during the course of the return procedure, a step which would risk delaying the removal.

Also, the possibility given to the criminal court of replacing the fine with an expulsion order accompanied by an entry ban to Italy, in situations where it is possible immediately to effect the return of the individual concerned, is not contrary to that directive.

Indeed, the directive allows the Member States - on the basis of an individual examination of the situation of the individual concerned - to impose expulsion without granting a period for voluntary departure where there is a risk that that individual may abscond in order to avoid the return procedure.

The Court also observes that the Member States are required, under their duty of loyalty and the requirements of effectiveness referred to in the directive, to carry out the removal as soon as possible. Where a fine is replaced by a home detention order, the Court finds that that order, imposed in the course of the return procedure, does not help to achieve the physical transportation of an illegally staying third-country national out of the Member State concerned. On the contrary, that home detention order may delay and impede measures such as deportation and forced return by air.

Therefore, the Court finds that the return directive precludes national legislation that allows illegal stays by third-country nationals to be penalized by means of a home detention order without guaranteeing that that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.