Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Court of Justice of the European Union/Italy: Criminal Sanctions Imposed on Illegal Migrants Upheld

(Oct. 9, 2015) On October 1, 2015, the Court of Justice of the European Union (CJEU) issued a judgment in a case involving the legality of the imposition of a prison sentence on an expelled migrant, after his re-entry into Italy. (Judgment of the Court, Fourth Chamber, Case of C-290/14 (Oct. 1, 2015), EUROPA.)


The case involved an illegal migrant of Albanian origin who was in Italy and was subject to deportation and a removal order along with a three-year prohibition against re-entering Italy. The migrant left Italy and he was later caught in the country by law enforcement authorities, having violated the re-entry ban. He was sentenced to imprisonment for eight months by virtue of a national law that imposes imprisonment on third-country nationals who violate prohibitions of entry. (Id.) 


The legal question referred to the CJEU by the District Court of Florence, Italy, as a preliminary question, was whether, under the EU’s “Returns” Directive, a Member State is prohibited from imposing a prison sentence on a third-country national who illegally re-enters its territory in violation of an entry prohibition. (Id. ¶ 19; Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348)  98, EUROPA.) 


The CJEU, in interpreting the Returns Directive, stated that the Directive does not in principle prohibit the Member States from classifying the unlawful re-entry of a third-country national as illegal and imposing imprisonment on those who violate the prohibition of re-entry, as long as the national legislation that imposes criminal penalties does not endanger the attainment of the objectives of the Returns Directive. (Judgment of the Court, ¶ 25.)

The CJEU noted that the implementation of a return policy is part of the development of a common EU immigration policy, which is designed to prevent illegal immigration and adopt measures to fight it. (Id. ¶ 23.) Thus, in this case, the CJEU acknowledged that the Italian authorities initially applied the procedures provided by the Returns Directive and imposed imprisonment only after the illegal migrant re-entered the country. (Id. 27.)

The CJEU stated that the referring court must decide whether the entry prohibition against the illegal national was adopted in compliance with article 11 of the Directive. (Id. ¶ 31.) Article 11 of the Returns Directive deals with conditions under which entry prohibitions accompany return orders. (Directive 2008/115/EC, supra.) The Court held that the imposition of imprisonment must be in compliance with the fundamental rights and freedoms provided by the European Convention on Human Rights and the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. (Judgment of the Court, ¶ 32; Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocols No. 11 and No. 14 (as of June 1, 2010), Council of Europe website; CONVENTION AND PROTOCOL RELATING TO THE STATUS OF REFUGEES (Dec. 2010), U.N. High Commissioner for Refugees website.)

Based on this reasoning and a previous judgment on the same issue, the CJEU concluded that Directive 2008/115/EC does not preclude a Member State from imposing criminal sanctions on illegal migrants who re-enter its territory, following a deportation order and a prohibition on re-entry.  (Judgment of the Court, ¶ 33.)