National regulation imposing a prison sentence on third-country nationals illegally residing in a member state cannot be applied when a return procedure has been engaged in accordance with the Return Directive (2008/115/EC), the EU Court of Justice (ECJ) ruled, on 6 December 2011 (Case C-329/11). However, these sanctions become lawful after said procedure has been applied, says the ECJ. The Return Directive establishes the common standards and procedures applicable in member states for the return of third-country nationals found guilty of illegal stay.
In June 2011, Alexandre Achughbabian, an Armenian national who was served a return decision in 2009, was inspected in France and put in custody, suspected of having committed the offence of irregular stay as per Article L. 621-1 of Ceseda(1). A new return decision was adopted in June 2011 - formulated as a police escort to the border - based on the ruling that Achughbabian had indeed committed the offence of irregular stay. The authorities also ordered that he be detained.
These measures were contested by Achughbabian, who appealed on the grounds that Article L.621-1, which lays out a one-year prison sentence and a fine of 3,750, is incompatible with the Return Directive. The Court of Appeal therefore decided to refer the case to the ECJ.
Achughbabian has not yet been condemned to the prison sentence or the fine that were served to him. The adoption of a decision to deport him based on...