In our “Case Watch” blog series, lawyers from the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.
Hassen El-Dridi, an Algerian citizen, entered Italy illegally to start a new life. In 2010, the Italian government issued an order requiring that Mr. El-Dridi leave Italy within five days because he had no identification documents, and the Italian detention centers built to house illegal migrants were at capacity. El-Dridi ignored the court order. He was subsequently detained again, and given a one-year jail term: a 2009 Italian law states that migrants who enter Italy illegally and refuse to leave face a prison sentence from one to four years, and fines of up to 10,000 euros, followed by immediate expulsion.
Among the many problems with the Italian approach is that it appeared to be inconsistent with EU law on the return of illegally staying migrants. The EU directive on the return of illegal immigrants—a binding regulation issued by the European Commission—allows member states to take a range of increasingly tough measures to remove illegal immigrants from their national territories. But the directive applies the principle of proportionality to the use of the measures it allows.
The scale of available actions ranges from setting a period of time during which the immigrant can depart the country voluntarily, to the most restrictive: detention in a specialized center. But the directive makes clear that holding people in one of these detention centers is only justifiable when their actions suggest they risk jeopardizing the removal process. Even then, the detention must be for as short a period as possible, never exceeding 18 months. It must also be reviewed at reasonable intervals, and must end when it appears that a reasonable prospect of removal no longer exists. The aim of this is to establish an effective policy of removal and repatriation, while also ensuring the observance of their fundamental rights.
As a result, when El-Dridi appealed his prison sentence, the Italian Appeals Court in Trento turned to the European Court of Justice (ECJ) for guidance on the matter, asking whether jailing an illegal migrant contradicts the EU Directive. At the end of April, the ECJ ruled that it did.
The court found that the jail sentence imposed on El-Dridi risked violating the main objectives of the directive due to the conditions of the sentence and the methods of its application. Here, the Italian government did not continue its efforts to enforce the return decision or follow the principle of proportionality laid out in the directive. Rather, it provided for a custodial sentence on the sole ground that an immigrant stayed illegally after being notified of an order to leave, and the period granted to follow that order had expired. As a result, the European Court held that following its ruling, Italian judges should "disapply" the jail terms contained in Italy's immigration legislation: an individual may only be detained where they conduct themselves in a way that risks jeopardizing the removal process.
This decision sends a significant message in light of the recent tension within the European Union regarding irregular migration. Certain European nations, such as Italy and France, have recently sought even broader powers to detain and deport irregular migrants, even asking the European Commission for more powers to impose national border controls within the "passport free" Schengen zone, in response to an influx of migrants and refugees from North Africa.
Following this judgment, Italy, as well as all the other member states of the European Union, cannot use the threat of a jail sentence against illegal migrants who evade an order to leave the country without risking being in violation of the EU directive.