Clarification of the possibility of sanctioning an illegal immigrant who obstructs a removal order on the basis of article L.824-9 of the CESEDA (Code for Entry and Residence of Foreigners in France and the Right of Asylum) (Ruling n° 382 - 22-81.676)

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

Mr [D] [V] brought an appeal against the ruling of the Criminal Chamber of the Cour d'appel (Court of Appeal) of Lyon dated 22 December 2021, which sentenced him to three months' imprisonment for an offence under the national legislation on foreigners.

A written submission was filed.

Concerning the report by Mr Violeau,judge referee, the observations of SCP Spinosi, lawyer of Mr [D] [V], and the submissions of Mr Aldebert, advocate-general, after discussions in the public hearing of 22 February 2023 attended byMr Bonnal, president, Mr Violeau, reporting judge, Mr de Larosière de Champfeu, Ms Labrousse, Ms Leprieur, Ms Sudre, Messrs Maziau, Tureaux, Seys and Dary, Ms Thomas, Messrs Laurent, Gouton and Brugère, Ms Chaline-Bellamy, Mr Hill, judges of the chamber, Mr Mallard, Ms Guerrini, Mr Michon, Ms Diop-Simon, judge referees, Mr Aldebert, advocate-general, 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 2 March 2021, Mr [D] [V], an Algerian national, was the subject of a prefectural executive order imposing an obligation to leave the French territory.
3. On 9 August 2021, he was subjected to a prefectural executive order of detention for forty-eight hours, which was extended for twenty-eight days by order of the liberty and detention judge on 11 August 2021. On 8 September 2021, a further extension of the measure was ordered for 30 days.
4. On 10 and 26 August, 14 and 30 September 2021, Mr [V] refused to take the COVID-19 test necessary to board an aircraft bound for Algeria.
5. By judgement of 7 October 2021, the Criminal Court found him guilty of refusing to comply with the health obligations necessary for the execution of a removal order and sentenced him to three months' imprisonment.
6. Mr [V] appealed against said decision, and the public prosecutor lodged a cross-appeal.

Pleas

Examination of the pleas

Concerning the first plea

Statement of plea

7. The plea criticises the ruling under appeal for declaring Mr [V] guilty of the serious offence of refusal by a foreign national to submit to the transport arrangements or health obligations necessary for the automatic execution of a removal decision, whereas "it follows from the case-law of the Court of Justice of the European Union that Directive 2008/115/EC of 16 December 2008 precludes any national legislation implementing criminal proceedings against a third-country national staying irregularly on the territory of a Member State without the coercive measures provided for in said directive first having failed; it follows that by sentencing Mr [V] to a criminal prison sentence of three months under Article L. 824-9 of the Code on the Entry and Residence of Foreigners in France and the Right of Asylum (CESEDA) for his refusal to submit to a PCR test for the purpose of executing the measure for his removal, even though the administrative detention measure to which he was subject in the context of the removal procedure had not expired, the Cour d'appel (Court of Appeal) of Lyon infringed the above-mentioned texts."

Statement of reasons

Court's response

In view of Article 15 of 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 and Article L. 824-9 of the Code on the entry and residence of foreigners and the right of asylum:

8. According to the first of these provisions, in paragraph 1, Member States may only place a third-country national who is the subject of a return procedure in detention in order to carry out their removal, in particular when the person avoids or hampers the preparation of return or the removal process.
9. 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.
10. The Court of Justice of the European Union (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).
11. 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.
12. It follows that illegal third-country nationals who must be removed pursuant to the above-mentioned directive can, at most, be subject to detention at most in order to prepare and carry out that removal, because such measure is a deprivation of liberty.
13. 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 been insufficient to remove a third-country national who remains in their territory irregularly, without justified reason for non-return, 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).
14. 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 verify.
15. It follows that serious offences, punishable by a 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 detention procedure has come to an end.
16. Such is the case of Article L. 824-9, paragraph 3, of the Code on the Entry and Residence of Foreigners and the Right of Asylum, which provides that it is a criminal offence for a foreign national to refuse to submit to the health obligations necessary for the automatic execution of the removal measure to which he is subjected.
17. Such an offence may be prosecuted only if the foreign national has been subject to a regular measure of detention or house arrest that has ended for one of the reasons referred to in paragraph 14, without it having been possible to remove him.
18. In this case, to declare Mr [V] guilty of the offence defined in Article L. 824-9, paragraph 3 as referred to above, the ruling under appeal states that, although this directive prohibits the use of criminal measures until the administrative measures of removal have been exercised, it does not prohibit the sanctioning of deliberate behaviour of refusal vis-à-vis the administrative measures taken in the context of removal, without it being necessary to keep the person concerned in detention until the expiry of the maximum period of such detention.
19. In so ruling, whereas the criminal proceedings could not be initiated before the expiry of the period of detention of the accused, which had not ended in this case, the Cour d'appel (Court of Appeal) disregarded the above-mentioned legal provisions and the principles referred to above.
20. The decision is therefore subject to quashing

Scope and consequences of the quashing

21. The quashing will take place without referral back to the court of appeals, since the Cour de cassation (Court of Cassation) has jurisdiction to enforce the law directly and settle the dispute, as provided in Article L. 411-3 of the Judicial Code.

Operative part of the judgment

ON THESE GROUNDS, and without examining the proposed second ground for quashing, the Court:

Quashes and sets asides, in all its provisions, the abovementioned ruling of the Cour d'appel (Court of Appeal) of Lyon of 22 December 2021; DECLARES that there is no need to refer back the case;

RECALLS that, as a result of this decision, the judgement at first instance loses all enforceability as regards the guilt decreed against Mr [V];

ORDERS the printing of this ruling, its transcription in the registers of the Registrar of the Cour d'appel (Court of Appeal) of Lyon and its annotation in the margin or following the quashed ruling;

Thus decided by 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.