Case summaries

The Return Directive does not preclude Member States from introducing legislation that imposes a custodial sentence on individuals for whom the return procedure has been exahusted but still remain in the territory, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security.

However, such a provision in national legislation is permitted if the criminal act is not defined as a breach of such an entry ban and the legislation itself is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness.

Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.

The CJEU ruled that the period of application of an entry ban under the Return Directive begins to run from the date on which the person concerned has actually left the territory of the Member States.

The Supreme Court has requested two preliminary rulings to the Court of Justice of the European Union. The time of onset and the determination of the duration of the suspect’s ‘undesirable declaration’, which is considered equal to an entry ban, are under discussion since this statement had already been issued before the Return Directive was operational.

Article 8(3)(e) of the recast Reception Conditions Directive fulfils the requirements of proportionality by virtue of the strictly circumscribed framework regulating its use. In light of Article 52(3) of the Charter, Article 8(3)(e) therefore complies with Article 5(1)(f) of the ECHR.

The Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban.

The Returns Directive does not permit an entry ban to be time limited only in circumstances where the recipient makes an application for such.

1. The expulsion of a recognised refugee may only take place subject to the requirements of Article 21 (3) in conjunction with (2) and Article 24 (1) of the Qualification Directive.

2. Compelling grounds for public security or order according to Article 24 (1) of the Qualification Directive do not presuppose any outstanding acts of extraordinary danger in support of international terrorism; neither does specific involvement of a sympathiser suffice unless it is characterised by a large degree of continuity and as such shapes and influences the environment of the terrorist organisation. 

Contrary to the wording of the corresponding Austrian legislation, an entry ban of at least 18 months which must be issued in every case together with a ban on readmission is not compatible with the Returns Directive without a prior examination on a case-by-case basis.