Brussels, 06/12/2011 (Agence Europe) - French legislation, which allows an illegally staying third country national to have a prison sentence imposed on him/her during the return procedure is not in line with the EU directive on returns (Directive 2008/115/EC).
This ruling by the EU Court of Justice was delivered on 6 December (Case C-329/11) to the Cour d'appel de Paris (Court of Appeal, Paris). The latter had asked the Court of Justice of the EU whether the return directive precludes French legislation which punishes a third country national who stays illegally in France beyond three months, without the required documents and visas, particularly a residence permit, by a one-year sentence of imprisonment and a fine of €3,750.
In its ruling, the Court indicates that the directive does not preclude national legislation which makes it an offence for a third-country national to stay illegally and provides for penal sanctions, including a sentence of imprisonment. Nor does the directive preclude a placing in detention in order to determine whether or not a third-country national's stay is lawful. However, once the illegality of the stay has been established, the state in question must adopt a return decision as soon as possible. The French legislation may lead to the imposition and implementation of a prison sentence during the return procedure, delaying removal and thus jeopardising the objectives of the directive, which are precisely the removal and the transfer of the person concerned to a place outside the European Union. (FG/transl.jl)