The Netherlands – Supreme Court, 29 March 2016, 14/00826

Facts:

The Minister for Immigration and Integration’s order has declared the defendant’s presence on the Dutch territory unwanted. The defendant has been convicted five times by a criminal court after which the Minister claimed the presence of the defendant to constitute a threat to public order. Consequently, the defendant is not allowed on the Dutch territory for the duration of ten consecutive years. In violation of this obligation, the defendant has resided in the Netherlands during this period, which is subject to criminal punishment. Therefore, the defendant is sentenced to imprisonment for two months and this penalty is challenged at the Supreme Court level.

Decision & reasoning:

The Supreme Court has previously ruled that the undesirable declaration, imposed before the Return Directive’s entry into force or before the final implementation deadline of this directive, must be assimilated to an entry ban as meant in the Return Directive. This assimilation raises two questions.

First, when the period of entry bans has started. The first request to preliminary ruling suggests three possibilities:

a)      from the moment the entry ban (or retrospectively: the equivalent of an undesirable declaration) was issued, or

b)      the date on which the parties concerned have actually left the territory of the EU Member States, or

c)       any other moment in time?

Secondly, it is questionable whether the maximum duration of the five-year entry ban, as set out in the Return Directive, has been exceeded. It is noted that there are no transitional arrangements regarding entry bans which have been agreed upon before the Return Directive has been put into place. The Court of Justice of the European Union has therefore clarified in its earlier ruling Filev and Osmani, that, based on the principle of direct effect, the Return Directive applies to the (legal) consequences of decisions taken before the directive became applicable. Consequently, the Court of Justice of the European Union held in that judgment that, when determining the period of the entry ban, the time before the application of the Return Directive must also be taken into account. However, it is noted by the Supreme Court that the violation of the expulsion order differs in three ways from the Court of Justice of the European Union’s previous judgment.

On the one hand, the entry ban in the current case does not apply indefinitely since the defendant ought to remain outside the Netherlands for ten years. This period may be subject to judicial review under national law. On the other hand, the defendant does pose a threat to public order. Finally, this case includes consequences of an inalterable ruling since the ruling in the case had been taken several years before the adoption of the Return Directive.

The second request for a preliminary ruling therefore asks whether the decision, taken before the Return Directive entered into force, which states that the recipient must reside outside the Netherlands for ten consecutive years, has no legal effect in case the duration of the obligation at the time of the implication of this directive, exceeded the duration referred to in the Return Directive?

Outcome:

The Supreme Court has referred the case to the Court of Justice of the European Union and will rule upon receipt of the preliminary rulings.

Subsequent proceedings:

The Court of Justice of the European Union will have to make a decision regarding the request for a preliminary ruling. The Supreme Court will afterwards decide on the case.

On the 26 July 2017 the CJEU held in Case C-225/16 Ouhrami that the starting point of the duration of an entry ban, which in principle may not exceed five years, must be calculated from the date on which the person concerned actually left the territory of the Member States. It then explained that the Directive draws a distinction between a return decision and an entry ban. Until a person’s obligation to return is voluntarily complied with or enforced and said person has actually left the Member State, the illegal stay of the person is governed by the return decision and not by the entry ban. It is only after the person has actually left that the entry ban produces its legal effects. The objective of Article 11 would be compromised, the Court explained, if the refusal of a third-country national to comply with the obligation to return were to enable him to avoid the legal effects of an entry ban, which would be the case if the entry ban’s application were to commence and possibly expire during a removal procedure.

Observations/comments:

The preliminary ruling is applicable to all Member States. The correct determination of terms duration is crucial for i.a. family reunification. Clarity is needed to ensure compliance with the Return Directive’s recitals in the preamble concerning clarity, transparency and fair rules that set out common standards for all Member States with full respect for fundamental rights and dignity of those who are excluded. 

Other sources:

This case summary was written by Birte Schorpion, an Immigration Law LLM-student at Queen Mary University of London.

The case summary was proof read by Miek Lamaire, MA International Security.