Case C‑430/11

Md Sagor

(Reference for a preliminary ruling
from the Tribunale di Rovigo)

(Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — National legislation providing for a fine which may be replaced by an order for expulsion or home detention)

Summary — Judgment of the Court (First Chamber), 6 December 2012

1.        Questions referred for a preliminary ruling — Admissibility — Conditions — Questions relating to the actual facts of the dispute or its purpose

2.        Border controls, asylum and immigration — Immigration policy — Returning illegally staying third-country nationals — National subject to a return procedure as referred to in Directive 2008/115 — National legislation punishing an illegal stay with a fine which may be replaced by an expulsion order — Permissible

(European Parliament and Council Directive 2008/115)

3.        Border controls, asylum and immigration — Immigration policy — Returning illegally staying third-country nationals — National subject to a return procedure as referred to in Directive 2008/115 — National legislation punishing an illegal stay with a home detention order — Home detention being allowed to continue despite the possibility of physically transporting the individual concerned — Not permissible

(European Parliament and Council Directive 2008/115, Art. 8)

1.        See the text of the decision.

(see para. 29)

2.        Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not precluding Member State legislation which penalises illegal stays by third-country nationals by means of a fine which may be replaced by an expulsion order, so long as neither the fact that a criminal prosecution provided for in that legislation is pending nor the possibility that that criminal prosecution may lead to a fine are liable to delay or otherwise impede the adoption and implementation of the return measures envisaged by Directive 2008/115 and so long as the use of the option given to the criminal court of replacing the fine with an expulsion order accompanied by an entry ban of at least five years is restricted to situations where it is possible to effect the immediate return of the individual concerned.

(see paras 35-37, 47, operative part)

3.        Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding Member State legislation which allows illegal stays by third-country nationals to be penalised by means of a home detention order without guaranteeing that the enforcement of that order must come to an end as soon as the physical transportation of the individual concerned out of that Member State is possible.

Clearly, the imposition and enforcement of a home detention order during the course of the return procedure provided for by Directive 2008/115 do not contribute to the achievement of the removal which that procedure pursues, namely the physical transportation of the relevant individual out of the Member State concerned. Such an order does not therefore constitute a ‘measure’ or a ‘coercive measure’ which is necessary to enforce the return decision within the meaning of Article 8 of Directive 2008/115.

(see paras 44, 47, operative part)