Clarification of the possibility of sanctioning an illegal immigrant who obstructs a removal order under article L.824-1 of the CESEDA (Code for Entry and Residence of Foreigners in France and the Right of Asylum) (Ruling n° 381 - 22-85.816)

FRENCH REPUBLIC

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ON BEHALF OF THE FRENCH PEOPLE

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RULING OF THE CRIMINAL CHAMBER OF THE COUR DE CASSATION (COURT OF CASSATION)

OF 13 APRIL 2023

The Prosecutor-General at the Cour d'appel (Court of Appeal) of Metz brought an appeal against the ruling of the criminal chamber of that court dated 16 June 2022, which acquitted Mr [B] [L] on the charge of infringing the law on foreigners.

A written submission was filed.

On the report of Mr Tureaux, judge, and the submissions of Mr Courtial, advocate-general referee, after discussions in the public hearing of 22 February 2023 attended by Mr Bonnal, president, Mr Tureaux, reporting judge, Mrde Larosière de Champfeu, Ms Labrousse, Ms Leprieur, Ms Sudre, Mr Maziau, Mr Seys, Mr Dary, Ms Thomas, Mr Laurent, Mr Gouton, Mr Brugère, Ms Chaline-Bellamy, Mr Hill, judges of the Chamber, Mr Violeau, Mr Mallard, Ms Guerrini, Mr Michon, Ms Diop-Simon, judge referees, Mr Courtial, advocate-general referee, and Ms Boudalia, Chamber Registrar,

the criminal chamber of the Cour de cassation (Court of Cassation), composed of the above-mentioned President and judges, after having deliberated in accordance with the law, has issued this ruling.

Account of the dispute

Facts and procedure

1. The following results from the ruling under appeal and the documents of the proceedings.
2. On 9 April 2021, Mr [B] [L], a Sudanese national, was the subject of a prefectural executive order that imposed an obligation to leave the territory. He was placed in a detention centre on 22 December 2021 in order to enforce the removal decision; his detention was extended by the liberty and detention judge until 20 February 2022.
3. On 5 January, then on 9 February 2022, Mr [L] refused to go to the Sudanese consulate to draw up the documents necessary for his deportation to that country.
4. He was prosecuted before the Criminal Court on 10 February 2022 for having failed to provide the competent administrative authority with travel documents or information allowing for fulfilment of an obligation to leave the territory.
5. By judgement of 25 February 2022, the Criminal Court upheld a plea of nullity raised for the accused and pronounced his acquittal.
6. The public prosecution appealed against said decision.

Pleas

Review of the plea

Statement of plea

7. The plea criticises the ruling under appeal insofar as it upheld the pleas of nullity and acquitted the defendant, whereas article L. 824-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum does not state that the offence it punishes applies to a person who has been the subject of a lawful detention order or house arrest that has ended without it having been possible to remove them, that in holding that this condition, provided for by article L. 824-3 of the same Code, must be interpreted as a general principle applying not only to the offence of remaining illegally on national territory but also to the offences of obstructing and evading the execution of an administrative measure of deportation, the Court of Appeal violated the first of the aforementioned texts and Article 591 of the Code of Criminal Procedure.

Statement of reasons

Court's response

8. In order to accept the plea of nullity raised by the accused, alleging infringement of the rules laid down by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008, as interpreted by the Court of Justice of the European Union (CJEU), and to pronounce his acquittal, the ruling under appeal maintains that the prosecution was carried out before the maximum deadline of detention of the prosecuted person had been reached.
9. In so deciding, the Cour d'appel (Court of Appeal) justified its decision without disregarding the texts referred to in the plea.
10. DIRECTIVE 2008/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals lays down the standards and procedures in Member States for returning illegal third-country nationals.
11. Article 15(1) of this text states that Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when the third-country national concerned avoids or hampers the preparation of return or the removal process.
12. Paragraph 6(a) of the same Article provides that the maximum period of detention may be extended where, despite the efforts of the Member State, the removal operation is prolonged because of the lack of cooperation of the person concerned.
13. The CJEU has ruled that the abovementioned directive precludes legislation of a Member State laying down criminal penalties for illegal stays, in so far as that legislation permits the imprisonment of a third-country national who, though staying illegally in the territory of the said Member State and not being willing to leave that territory voluntarily, has not been subject to the coercive measures referred to in Article 8 of that directive and has not, being placed in detention with a view to the preparation and carrying out of his removal, yet reached the end of the maximum term of that detention(CJEU, ruling of 6 December 2011 Achughbabian, C-329/11).
14. The CJEU considers that such imprisonment is liable to obstruct the application of the removal procedure and to delay the return, thus undermining the effectiveness of that directive, the purpose of which is to establish an effective removal and repatriation policy based on common standards so that the persons concerned are repatriated in a humane manner and with full respect for their fundamental rights and dignity.
15. It follows that illegal third-country nationals who must be removed in accordance with the abovementioned directive may, in the event of a loss of liberty, be subject at most to detention in order to prepare and carry out that removal.
16. Nevertheless, according to the CJEU and in compliance with the principles of Directive 2008/115 and its objective, Member States are entitled to adopt rules governing the situation in which coercive measures have not made it possible to achieve the removal of a third-country national who is staying on their territory irregularly when the return procedure established by that directive has been completed (CJEU, ruling of 28 April 2011, C-61/11, El Dridi; ruling of 6 December 2011 referred to above; ruling of 7 June 2016, Affum, C-47/15).
17. This is the situation of the person who has been the subject of a detention order for a maximum period of time that has been reached without it having been possible to remove him despite the efforts of the Member State, and of the person whose detention has been lifted on the finding that a reasonable prospect of removal no longer exists for legal or other considerations , as defined in Article 15, paragraph 4 of the aforementioned directive, which the court hearing the case must ensure.
18. It follows that serious offences, punishable by prison sentence, whose prosecution is based on the fact that the prosecuted person entered, stayed or remained illegally, and whose sole purpose is to penalise the latter's lack of cooperation in the execution of the return decision, cannot be prosecuted before the removal procedure has come to an end.
19. One example is Article L. 824-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, which provides that a foreigner who is the subject of an administrative prohibition on entering the territory, a decision of removal, a measure of deportation or an obligation to leave the territory, is liable to three years' imprisonment if they do not provide the competent administrative authority with travel documents or information to establish their identity, or if they provide inaccurate information.
20. Such an offence may be prosecuted only if the foreigner has been subject to a regular measure of detention or summons which has ended for one of the reasons referred to in paragraph 17, without it having been possible to remove them.
21. The plea is therefore unfounded.
22. Moreover, the ruling is procedurally correct.

Operative part of the judgment

ON THESE GROUNDS, the Court:

DISMISSES the request;

Thus decidedby the criminal chamber of the Cour de cassation (Court of Cassation) and pronounced by the president at the public hearing of the thirteenth day of the month of April of the year two thousand and twenty-three.