Abstract
At EU-level, the use of substantive criminal law as a response to illegal migration is materialised by both the EU legislator and the Member States individually. EU involvement in criminalizing illegal migration takes place in a twofold manner: directly, through harmonization of national legislations, and indirectly, through the case law of the Court of Justice of the European Union (CJEU). An example of the latter is the case law of the CJEU regarding criminal law sanctions for breaching an entry ban. In 2008 the EU adopted the Return Directive. This directive aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals. To actually effectuate their return, the Return Directive provides for several instruments, inter alia, entry bans. In this article, we will analyse six judgments of the CJEU in the light of crimmigration law and make a distinction between the Member Statesʼ power to classify a breach of an entry ban as an offence and to lay down criminal law sanctions in national legislation, and their power to impose such sanctions.Key notes: Return Directive, entry ban, illegal migrant, criminal law sanctions, crimmigration, expulsion
Highlights
This article focuses on the Return Directive[1] and the entry ban, foreseen in Article 3(6) and Article 11 thereof
In Affum the Court of Justice of the European Union (CJEU) concluded that, for the same reasons as those set out in its decision in Achughbabian, Member States cannot permit nationals of non-EU countries in respect of whom the return procedure established by the Return Directive has not yet been completed to be imprisoned merely on account of illegal entry, resulting in an illegal stay, as such imprisonment is liable to thwart the application of that procedure and delay return, and thereby to undermine the Return Directive’s effectiveness
We conclude that there is an overlap between immigration law and criminal law in the area of the Return Directive and the entry ban foreseen thereof
Summary
This article focuses on the Return Directive[1] and the entry ban, foreseen in Article 3(6) and Article 11 thereof. As defined in Article 3(6) of the Return Directive, an entry ban is an ‘administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision’. This directive does not in itself preclude national legislation from classifying a breach of an entry ban by an illegally. Even though all of these judgments are not related to entry bans, they are relevant as to define the Member Statespower to classify a breach of an entry ban as an offense and to lay down criminal law sanctions in national legislation, and their power to impose these sanctions.
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