CJEU rules on the interpretation of Article 11 (entry bans) of the Return Directive
The case concerns a request for a preliminary ruling regarding the interpretation of Article 11 of the Return Directive ("Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases, return decisions may be accompanied by an entry ban").
The applicant is a national of Algeria against whom criminal proceedings were brought for illegal stay in the Netherlands despite having an entry ban ordered against him. He was sentenced to two months imprisonment and on appeal he argued that the entry ban would be binding only once he had left the territory of Netherlands, so he could not be criminally convicted for breaching the entry ban.
The CJEU held that Article 11 of the Return Directive "does not preclude national legislation permitting the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in the territory of the relevant Member State with no justified ground for non-return" (Achughbabian judgment). However, the CJEU highlighted that the entry ban produces effects only from the moment the individual leaves the territory of the Member States (Ouhrami judgment). Thus, if the third country national has not left the territory, a punishment can be imposed only on the basis of an initial illegal stay and not on the basis of breaching an entry ban. In addition, to avoid arbitrariness, the national criminal legislation must be sufficiently accessible, precise and foreseeable.
European Union, Court of Justice of the European Union [CJEU], JZ, C-806/18, ECLI:EU:C:2020:724, 17 September 2020. Link redirects to the English summary in the EASO Case Law Database.