ILLEGAL IMMIGRANTS : RETURN DIRECTIVE: HOME DETENTION ORDER IMPEDES PROCESS, SAYS ECJ.

An EU member state has the right to punish an irregular stay with a fine, which may, under certain conditions, be replaced by an expulsion order. By contrast, Directive 2008/115/EC on the common standards and procedures applicable in the member states for the removal from their territory of illegally staying third-country nationals (the return directive) does preclude a member state from punishing an irregular stay with a home detention order if it is not guaranteed that that order will come to an end as soon as the physical transportation of the individual concerned out of that member state is possible. This is the gist of a ruling delivered by the EU Court of Justice, on 6 December 2012, in response to a question asked by an Italian court.

The case is about Md Sagor, who claims to have been born in Bangladesh and who became a street vendor of no fixed abode in Italy. As he did not possess a residence permit, in 2010 he was summoned before the Tribunale di Rovigo (District Court, Rovigo, Italy) for the offence of illegal stay. That court turned to the ECJ to ask if the return directive runs counter to Italian legislation, under which irregular stays can be punished by a fine that may, under certain conditions, be replaced by an order for expulsion or home detention.

The court observes that the return directive is not designed to harmonise in their entirety the rules of the member states on the stay of foreign nationals. A member state may classify an illegal stay as an offence and lay down criminal...