Brussels , 11/06/2015 (Agence Europe) - A foreigner in an irregular situation, even if only suspected of committing a crime or who has not yet been formally found guilty, may, based on detailed elements arising from an examination of his individual case, be considered by the authorities of member states as a “danger to public order” under the EU directive on the return of illegal aliens (2008/115/EC) and may therefore be deported immediately or within seven days, depending on the case in question, without waiting to hear the final court judgment.
In this ruling issued on Thursday 11 June in case C-554/13 in response to questions from the Dutch Council of State, the European Court of Justice goes along with all the points in the opinion issued by Advocate General Eleanor Sharpston (see EUROPE 11253). It stipulates the criteria to be taken into account by member states' courts to determine whether there is a danger to public order (which is not defined in the Directive) and to determine whether or not a time period in which to depart voluntarily should be granted to a clandestine immigrant suspected of committing a crime or who is in the process of being tried.
The Court of Justice stresses first of all that the simple fact of being a foreigner without legal papers, whether suspected of committing a crime or having been sentenced for a crime, is not enough in itself to justify considering that person as a danger to public order. A person may only be considered a danger to public order if factual or legal elements have been considered case-by-case that can determine whether the behaviour of the person in question is a “real and current danger to public order.” In particular, the national authorities should take account of the nature and gravity of the acts the person is accused of, the time that has elapsed since they were committed and the degree of involvement in them, the reliability of the suspicions of the crime or misdeeds that the person is accused of or the fact that the individual was in the process of leaving the country when he was arrested. Finally, if it emerges that the individual is in fact a “danger to public order,” then member states must not automatically deny him a time in which to depart voluntarily, and may only do so after they have verified whether in this particular case, there is an immediate danger and the lack of such a period of time is compatible with respect of his fundamental rights. (Francesco Gariazzo)