Brussels, 07/12/2012 (Agence Europe) - On 6 December, the European Court of Justice ruled in Case C-430/11 that the EU 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. However, member states must not punish an irregular stay with a home detention order if it is not guaranteed that that order will come to an end as soon as the physical transportation of the individual concerned out of that member state is possible. Under Italian legislation, irregular stays can be punished by a fine which may, under certain conditions, be replaced by an order for expulsion or home detention, and Rovigno Court in Italy asked the Court of Justice whether these rules were compatible with the EU Returns Directive (2008/115/EC). The Court of Justice explained that the Returns Directive does not 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 penalise such an infringement, but national law must not undermine the application of the common standards and procedures established by that directive and thus deprive it of its effectiveness. The Court upholds its case-law under which the Returns 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. 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, said home detention order may delay and impede measures such as deportation and forced return by air. Therefore, the Court finds that the Returns Directive precludes national legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that that order will come to an end as soon as the physical transportation of the individual concerned out of that member state is possible. (FG/transl.fl)