Brussels, 28/04/2015 (Agence Europe) - If a national of a third country to the European Union returns to the territory of a member state, despite a prohibition on entering that state, can the authorities sentence that person to prison?
The answer to this question is 'yes', as a foreign national can be sentenced to up to 4 years' imprisonment, under Italian legislation in this case. However, it is apparent that this sentencing would violate Community law, according to Advocate General Maciej Szpunar, who presented conclusions to this effect to the Court of Justice of the EU, on Tuesday 28 April.
In the case in question (C-290/14), a third-country national was arrested in 2014 by the Italian authorities, who became aware that the individual had been handed a three-year ban from entering Italy in 2012. The court in charge of the dossier approached the Court of Justice to ask whether the Italian legislation, which provides for a sentence of four years' imprisonment in such cases, complies with the European “returns” directive (2008/115/EC).
According to Szpunar, the Italian rules do not comply with EU law. He reiterated that the main objective of the “returns” directive is not to prevent illegal residency in the EU countries, but to end it through a return decision, possibly together with a ban on entry. If a third-country national re-enters the territory of a member state despite an entry ban, the obligations upon the member state remain the same and the provisions of the directive apply once again.
This means that detention or imprisonment must be restricted to the situations laid down by the directive, in other words for criminal acts which have nothing to do with the illegal residency, in administrative situations governed by the directive and in order to determine whether or not the residency is legal. Solely the fact that the person is in the country illegally following a violation of an entry ban is not grounds enough, under EU law, to order a prison sentence, because ultimately a new return decision has to be made, without delay and without compromising the return procedure. (Jan Kordys)