The Problem of Criminalisation of the Illegal Entry of a Third-Country National in the Case of Breaching an Entry Ban—Commentary on the Judgment of the Court of Justice of 1 October 2015 in Case C 290/14, Skerdjan Celaj

Abstract

This article seeks to analyse the judgment of the Court of Justice in the Celaj case. The ruling in question concerns Italian national legislation which facilitates the imposition of criminal law sanctions on a third-country national who illegally enters the territory of a Member State accompanied by a breach of a previous entry ban. Although Advocate General Maciej Szpunar claimed in his opinion that such a national provision was incompatible with the main purpose of the Return Directive (which is, in principle, to return every undocumented migrant), the Court of Justice decided in the final judgment that the criminalisation of such an illegal entry should be allowed. Moreover, in its ruling, the Court of Justice suggests that authorities should differentiate between the first entry and subsequent entries and thus apply the provisions of the directive accordingly. The author analyses and compares the Advocate General’s opinion with the final judgement of the Court and examines the consequences of the ruling for eu return policy. The ruling in question, which, in the author’s opinion, has a precedent character and may raise controversies, implies a juxtaposition of conflicting values: the principle of effectiveness of the Return Directive as opposed to ensuring full respect for the rule of law, the effectiveness of law and of the principle of ‘nullum crimen sine lege’. By giving priority to the principles of the rule of law and legal certainty, the Court clearly indicates that ‘it is not a crime to be a foreigner,’ yet the law imposes certain rules and duties on foreigners, which they must abide by, whereas the duty of Member States is to uphold the rule of law.