Available via license: CC BY-NC-ND 3.0
Content may be subject to copyright.
207
Bialystok Legal Studies
Białostockie Studia Prawnicze
2021 vol. 26 nr 6 (Special Issue)
DOI: 10.15290/bsp.2021.26.06.12
© Faculty of Law, University of Bialystok, Poland
Received: 1.07.2021
Accepted: 30.09.2021
Anna Magdalena Kosińska
University of Szczecin, Poland
anna.kosinska1@usz.edu.pl
ORCID ID: https://orcid.org/0000–0002-0915–874X
Has the CJEU Made the First Step to Put a Stop to the
Criminalisation of Migration? Commentary to the Judgement
in the Case of JZ in the Context of the COVID-19 Pandemic
Abstract: e paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in
which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. e
author asks a question of whether an entry ban as a measure limiting the right to free movement has
a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem
of the criminalisation of irregular migration – both in the context of the established line of the Court’s
case law and in the case of a vague national law standard that penalizes illegal stays – the possibility
to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal
migrant.
Keywords: COVID-19 pandemic, criminalisation of migration, Directive 2008/115, entry ban, irregular
migration, return policy
Introduction
In the JZ judgement1 that is the subject matter of this commentary, the Court
of Justice of the European Union (hereina er the Court) interpreted Article 11 of
Directive 2008/1152. Governance of irregular migration is a particular challenge for
1 Judgment of CJEU of 17 September 2020 in the case of criminal proceedings against JZ, C806/18;
hereina er the JZ judgement, judgment in C 806/18.
2 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
208
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
the Member States of the European Union (EU), which on the one hand are obliged
to respect guarantees of human rights that result from acts of international law and
the EU law alike3, and on the other are trying to mitigate the threats for the security of
the host country likely to be brought by ows of irregular migrants.
Ethical and moral problems resulting from governance of illegal migration are
re ected in the semantics of the language of the law and the legal language as well as
the semantics of the scholarly human rights discourse that is carried out parallel to
the implementation of return law standards – Directive 2008/115 is sometimes called
a “directive of shame”4 by scholars and NGOs’ representatives. In turn, terms such
as “unwanted migrants” or “illegal migrants” used to denote third-country nationals
that stay in the territory of Member States (MS) in breach of the law do not encourage
a positive attitude towards such migration ows either5.
erefore, can the case law of the Court of Justice of the European Union and the
opinions of Advocates General provide an advocacy mainstream in the context of the
need to ensure special protection of, and sensitivity to, the rights of a group which
in administrative and court proceedings is unquestionably particularly vulnerable to
violations?
1. EU Law Analysed
In the judgement that is the subject matter of this commentary, the Court
interpreted Article 11 of the Return Directive. According to Article 11(1) of this
directive:
Return decisions shall be accompanied by an entry ban:
a) if no period for voluntary departure has been granted, or
b) if the obligation to return has not been complied with.
In other cases, return decisions may be accompanied by an entry ban.
An entry ban was de ned in Article 3 of the Directive, and pursuant to point 6
it means “an administrative or judicial decision or act prohibiting entry into and stay
nationals (O.J.L 348, 24.12.2008, p. 98–107); hereina er Directive 2008/115, Return Directive,
Directive.
3 ese guarantees result, in particular, from Articles 18 and 19 of the Charter of Fundamental
Rights of the European Union, hereina er as Charter (O.J.C 202, 7.06.2016, p. 389–405).
4 A.Crosby, e Political Potential of the Return Directive, “Laws” 2014, no. 3, p. 7, www.mdpi.
com/journal/laws/ (12.03.2021).
5 T.G.Eule, L.M.Borrelli, A.Lindberg, A.Wyss, Migrants Before the Law. Contested Migration
Control in Europe, London, and Basingstoke 2019, pp. 25–26. e authors of the research
introduce an interesting term “migrants with precarious legal status” which does not seem to have
pejorative undertones. See also H.Motomura, Immigration Outside the Law, New York 2014, pp.
21–22.
209
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
on the territory of the Member States for a speci ed period, accompanying a return
decision”. Moreover, Article 11 of the Directive stipulates that an entry ban shall not
in principle exceed ve years, but if the third-country national represents a serious
threat to public security, national security, or public policy this period may be longer.
An entry ban may be withdrawn or suspended (upon a discretionary decision of
a Member State) where a third-country national demonstrates that he or she has le
the territory of a Member State and thus fully complied with a return decision6.
2. Facts and Domestic Proceedings
Domestic proceedings in the discussed case were carried out before the
Supreme Court of the Netherlands. Mr JZ, born in Algeria in 1969, was the party
to the proceedings. Mr JZ was staying in the territory of the Netherlands when he
was declared “undesirable” in a 2000 decision. Following the implementation of the
Return Directive in the Netherlands, a relevant national law on foreign nationals was
amended on 31 December 2011. On this basis Mr JZ requested that the declaration
of undesirability should be li ed, and the State Secretary for Security and Justice
decided in favour of the applicant. However, by order of 19 March 2013, the applicant
was obliged to leave the territory of the host country and a ve-year entry ban was
also issued with respect to him7. e reasons for the entry ban for Mr JZ included
i.a., the fact that he had been previously convicted of various o ences. It is worth
emphasizing that pursuant to Dutch law (A4/3.3 Vreemdelingencirculaire 2000 –
Circular on Foreign Nationals) “any suspicion or conviction in respect of an o ence
constitutes a danger to public order”8 – thus Mr JZ constituted a threat to public
order in the light of the national law. In turn, pursuant to the Vw law (Article 66a(4)
(b)) a foreign national who represents a threat to public policy and who is subject to
an entry ban may not, under any circumstances, be lawfully resident in the territory
of the Netherlands9.
Mr JZ was arrested in 2015 in Amsterdam. Because he did not leave the
Netherlands immediately a er a decision imposing an entry ban was ordered against
him, it was determined that he stayed in the territory of the Netherlands illegally.
us, the national authorities concluded that there were grounds for applying
6 Article 11(3) sentence 1 of Directive 2008/115. Moreover, “Member States may refrain from
issuing, withdraw, or suspend an entry ban in individual cases for humanitarian reasons. Member
States may withdraw or suspend an entry ban in individual cases or certain categories of cases for
other reasons”.
7 Judgment in C 806/18, para. 17; Opinion of Advocate General – Opinion of Advocate General
Szpunar, delivered on 23 April 2020, C 806/18, JZ, hereina er as Opinion of Advocate General in
C 806/18.
8 Opinion of Advocate General in C 806/18, para. 16.
9 Ibidem, para. 12.
210
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
criminal sanctions under Article 197 of the Code of Criminal Law (hereina er CCL)
against Mr JZ. Pursuant to this provision “a third-country national who remains in
the Kingdom of the Netherlands while knowing, or having serious reason to suspect,
that he has been declared ‘undesirable’ pursuant to a statutory provision or that an
entry ban has been imposed on him pursuant to Article 66a(7) of the Vw is, inter alia,
liable to be sentenced to a term of imprisonment not exceeding six months”.10 On this
basis Mr JZ was sentenced to a term of imprisonment of 2 months11.
In his appeal Mr JZ asserted that a breach of an entry ban cannot be penalized
where a third-country national did not leave the territory of a Member State as such
a ban only takes e ect upon leaving a Member State12. us, Mr JZ concluded that he
committed no crime.
e national court that heard the case in the next instance, the Supreme Court of
the Netherlands, had doubts as to the legal assessment of a breach of an entry ban if
a third-country national has never le the host country. erefore, pursuant to Article
267 of the Treaty on the Functioning of the European Union13, the Supreme Court, as
the court of nal instance for hearing this case, decided to stay the proceedings and
referred a question for a preliminary ruling to the Court of Justice of the EU14.
3. Questions Referred and the Court’s Rulings
e national court requested that the CJEU should examine compliance of the
Dutch criminal statute (namely Article 197 of the aforementioned Code of Criminal
Law) with Article 11 of Directive 2008/115. e national court wished to determine
whether a criminal sanction may be imposed on a third-country national who failed
to comply with the return decision and against whom an entry ban was ordered but
who did not leave the territory of a Member State, while the criminal act he is accused
of is de ned as: “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”15. e Court, following the doubts presented by
the national court, decided to interpret Article 11 of the Directive also in the context
of the judgement in the Ouhrami case16.
10 Judgment in C 806/18, para 15.
11 Ibidem, para. 20.
12 Judgment in C 806/18, para. 19.
13 Treaty on the functioning of the European Union (consolidated version O.J.C 202, 7.06.2016,
p.47).
14 Case C 806/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden
(Netherlands) lodged on 20 December 2018 — JZ (O.J.C 122, 1.4.2019, p. 8).
15 Judgment in C 806/18, para. 23.
16 Judgment of CJEU of 26 July 2017 in the case of criminal proceedings against Mossa Ouhrami, C
225/16, hereina er as judgment in C 225/16.
211
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
In its preliminary observations the Court emphasized, in line with the established
case-law (judgments in Achunghbabian and Sagor)17, that Member States may qualify
an illegal stay as an o ence and apply criminal sanctions so as to discourage third-
country nationals from irregular stay in the EU. Criminal penalties cannot, however,
jeopardise the achievement of the objectives pursued by the Directive or deprive it of
its e ectiveness18 – the Directive’s main objective is to return third-country nationals
to their countries of origin. us, criminal penalties may only be applied where all
procedural measures for implementation of the return or forcing the third-country
national to return stipulated in the Directive have been exhausted19 – according to
the Court, a formula devised in the Achughbabian judgment may be applied and the
national solutions criminalising illegal stay that were examined in the case are not
contrary to the Directive.
Another key problem appeared in the investigated case, which is the legal
quali cation of a breach of an entry ban ordered against a third-country national
when he did not leave the territory of a Member State. e Court noted that an
entry ban order produces e ects from the point when the third-country national
actually leaves the EU territory, whereas Mr JZ is in a speci c unlawful situation
which is not a consequence of a breach of an entry ban under Article 11 of the Return
Directive, but it results from his initial illegal stay in the territory of the Kingdom of
the Netherlands20. In domestic proceedings Mr JZ claimed that, since he never le
the EU, the criminal penalty for a breach of an entry ban cannot be applied against
him. In turn, a contrario, the Dutch government claimed that Article 197 of the Code
of Criminal Law is intended to penalise any illegal stay of a third-country national
with notice that an entry ban has been imposed on him. In the opinion of the Dutch
government, it is irrelevant whether that ban was actually breached or not.
e Court believed that a requirement for an o ence must be satis ed if the
criminal penalty under the law is to be applied. In the case of Mr JZ there are no
grounds to believe that he violated the entry ban and thus he cannot be sentenced to
deprivation of liberty21.
However, in the Court’s opinion, in cases such as that of Mr JZ a criminal penalty
for illegal stay may be imposed on a person who did not breach an entry ban but
stayed in the territory of a Member State with notice of an entry ban issued on
account of that third-country national’s criminal record or the threat he represents to
public policy or national security22.
17 Judgment of CJEU of 6 December 2011 in the case of Alexandre Achughbabian v Préfet du Val-
de-Marne, C 329/11; Judgment of CJEU of 6 December 2012 in the case of Md Sagor, C 430/11.
18 Judgment in C 806/18, para. 26.
19 Judgment in C 806/18, para. 27; see also C 329/11.
20 Judgment in C 806/18, para. 33 and 34 of the
21 Ibidem, para. 40.
22 Ibidem, para. 43.
212
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
e Court laid down two conditions for imposing penal sanctions on third-
country nationals such as Mr JZ. First, the criminal act the third-country national
is accused of subject to penalty cannot be de ned by a reference to a breach of an
entry ban, but it must have a previous justi ed ground, when e.g., the third-country
national committed criminal acts and was convicted for them by a nal judgment.
Secondly, the national criminal provision must be compliant with standards of the
case-law of the European Court of Human Rights (hereina er also ECtHR), that
is: “any law empowering a court to deprive a person of his or her liberty must be
su ciently accessible, precise, and foreseeable in its application in order to avoid all
risk of arbitrariness”23. e court decided that it is for the national court to examine if
these conditions are met in the case of Mr JZ.
4. Assessment of the Judgement
e ruling at issue should be, in my opinion, analysed in terms of the standards
of protection of fundamental rights implemented by the European Union.
Legal scholars and commentators broadly address the problem of unequal
protection of migrants in relation to host country nationals24. David Miller goes as
far as to argue that migrants lose some of their human rights as a result of illegal
border crossing25. Host countries are obliged to protect migrants’ fundamental rights
according to their territorial jurisdiction, regardless of whether the foreign nationals
stay there legally or not. A host country is responsible for nding a fair balance
between protection of its own interests and protection of the rights of an individual.
erefore, do irregular migrants have only the right to enter or the right to
remain too?26
4.1. Entry Ban as a Measure Restricting the Right to Free Movement
Freedom of movement as a human right was most comprehensively guaranteed
in the Universal Declaration of Human Rights, according to which: “Everyone has
the right to freedom of movement and residence within the borders of each state”27.
23 Ibidem, para. 41; see also judgment of ECtHR of 21 October 2013 in the case of Del Río Prada v.
Spain, application no. 42750/09.
24 C.Grey, Justice and Authority in Immigration Law, Oxford and Portland, OR 2017, p. 55.
25 D. Miller, Strangers in Our Midst, e Political Philosophy of Immigration, Cambridge, MA
2016, p. 117.
26 S.Grant, e Recognition of Migrants’ Rights within the UN Human Rights System: the rst 60
years, (in:) M.B.Dembour, T.Kelly (eds.), Are Human Rights for Migrants? Critical Re ections
on the Status of Irregular Migrants in Europe and the United States, London 2011, pp. 30–33.
27 Universal Declaration of Human Rights proclaimed by the United Nations General Assembly
in Paris on 10 December 1948 (General Assembly resolution 217 A), https://www.un.org/en/
213
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
is right is derogable, i.e., it may be removed in speci c circumstances
stipulated by the legislator. Both the International Covenant on Civil and Political
Rights and the European Convention on Human Rights provide that the right to free
movement is limited to the right to leave one’s place of residence, whereas when it
comes to the freedom of choice of a place of residence, they stipulate the exercise of
this right only when the stay is legal28. Moreover, this right is limited due to “national
security or public safety, for the maintenance of public order, for the prevention of
crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.”29 e Charter guarantees the right to free movement only to EU
citizens30, with a reservation that it may be legally extended to include third-country
nationals who legally stay in the EU.
An entry ban stipulated in the Return Directive is thus a measure intended to
limit the right to free movement. As noted by Eleonora di Molfetta, a re-entry ban
is a form of exclusion, and the migrant himself starts to be treated as persona non
grata31 in the EU territory.
Entry bans ordered against third-country nationals are issued on the basis
of Article 11 of Directive 2008/115. As follows from the Report of the European
Migration Network, most Member States issue entry bans on the basis of
circumstances foreseen in Article 11(2) of the Directive, while some, such as Hungary,
or the Czech Republic, issue entry bans automatically for every return decision32. e
report also shows that entry bans that exceed 5 years are issued where a third-country
national represents a serious threat to public or national security33. erefore, an
entry ban enables national administrative measures to have European-wide e ects34.
about-us/universal-declaration-of-human-rights. Moreover, pursuant to Article 13(2):“Everyone
has the right to leave any country, including his own, and to return to his country”.
28 International Covenant on Civil and Political Rights, 16 December 1966 (United Nations,
Treaty Series, vol. 999, p. 171); European Convention for the Protection of Human Rights and
Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950 (European
Treaty Series – No. 5), hereina er as Convention.
29 Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, securing certain Rights and Freedoms other than those already included in the
Convention and in the First Protocol thereto, 16 September 1963 (Council of Europe, European
Treaty Series – No. 46), Article 2.
30 Article 45 of the Charter.
31 E. di Molfetta, J. Brouwer, Unravelling the ‘Crimmigration Knot’: Penal Subjectivities,
Punishment, and the Censure Machine, “Criminology & Criminal Justice” 2020, vol. 20, no. 3,
pp.312–313.
32 European Migration Network (EMN), e E ectiveness of Return in EU Member States.
Synthesis Report for the EMN Focussed Study, 2017, p. 76, https://ec.europa.eu/home-a airs/
what-we-do/networks/european_migration_network/reports_en (12.03.2021).
33 Ibidem, p. 79. In such cases, as is seen in the report, some Member States, such as Hungary, or the
Netherlands, issue entry bans that are valid for up to 20 years – p. 80.
34 M.Strąk, Polityka Unii Europejskiej w zakresie powrotów. Aspekty prawne, Warsaw 2019, p. 146.
214
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
Given the above, a question arises as to whether the judgment in question
brings a new light to the application and interpretation of the validity of entry bans.
Interpretation of Article 11 of the Directive has an established line of CJEU case-
law. e Court has addressed the validity of entry bans in Filev and Osmani,35 and in
Celaj36. e most comprehensive interpretation of Article 11 of Directive 2008/115
so far has been delivered in Ouhrami37, where the Court asserted that an entry ban
“must be calculated from the date on which the person concerned actually le the
territory of the Member States”38. is ruling had a real impact on legislative changes
in Member States – according to the aforementioned 2017 European Migration
Network report, as a result of the judgment in the Ouhrami case, national legislations
in Sweden, and Finland were adjusted to EU standards39.
In the judgement in question the CJEU upheld the established case-law
concluding that an entry ban produces e ects only when the third-country national
leaves the territory of a MS40. In the CJEU’s belief, provisions of the Directive should
be interpreted strictly – restriction of the freedom of movement by a valid entry
ban should depend on meeting the basic requirement for the ban’s validity, i.e., the
third-country national’s leaving the EU territory. us, the Court does not leave any
room for the interpretation to expand, concluding that all restrictions of personal
rights must be clearly rooted in the law – in national laws implementing the Return
Directive in this case.
An entry ban that appears in the narrative of reception by irregular migrants
themselves as a “message of disapproval”41 does not constitute violation of the
right to freedom of movement, but it is an administrative law consequence of the
third-country national’s non-compliance with the host country’s rules for receiving
foreign nationals. However, leaving aside the legal positivism that dominates in the
return law, is it worth asking the question of whether the European migration policy
should not have an ethical goal to lead the migrants out of the legal limbo instead of
prioritising the execution of their return.
35 Judgment of CJEU of 19 September 2013 in the case of criminal proceedings against Gjoko Filev
and Adnan Osmani, C 297/12; see para. 44.
36 Judgment of CJEU of 1 October 2015 in the case of criminal proceedings against Skerdjan Celaj, C
290/14.
37 Judgment in C 225/16.
38 Ibidem, operative part.
39 EMN, e e ectiveness…, op. cit., p. 81. An interesting issue that has surfaced in the discussion
on the consequences of the Ouhrami judgment and on ensuring its e ectiveness was a question
about allocating the burden of proof when the person involved has le the Member State, i.e.,
whether the burden of proof for leaving a Member State will rest with the third-country national
or with the MS bodies. Ibidem.
40 Judgment in C 806/18, para. 33; Opinion of Advocate General in C 806/18, para. 27.
41 E.di Molfetta, J.Brouwer, Unravelling…, op. cit., pp. 312–313.
215
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
4.2. Is there a Future for Criminalisation of Illegal Migration?
In the discussed judgment, with reference to the situation of third-country
nationals like Mr JZ’s, the Court clearly asserted that a criminal penalty for
illegal stay can be imposed when the person in question is undesirable on the
MS’s territory. In Mr JZ’s situation there are no doubts – the return procedure for
him was completed and he was previously convicted and sentenced for o ences
committed on the territory of the host country. However, the Court added that the
wording of such a provision, thus the quality of the legislative technique, should
meet the standards resulting from the ECtHR case-law in connection with Article
5 of the Convention.
In my opinion the following issues should be discussed in the light of the
judgment in question: rstly, the problem of criminalisation of irregular migration
and its moral assessment that recurs in the human rights discourse; secondly,
an answer to the question of how this judgment ts within the existing, relatively
robust CJEU case-law in matters of criminalisation of migration; thirdly, it is
worth addressing the Court’s comment on the need to investigate the construct of
a criminal regulation (stipulated in national legislation) that allows an illegal stay to
be criminalised.
With reference to the rst disputed question, it is rst and foremost worth
noting that third-country nationals with an irregular status should not be regarded
as criminals or treated as such42. For example, a forced return (deportation) is not
considered to be “double punishment”. Unfortunately, as seen in practice, the so-
called “double criminalisation” trend can be observed in some third countries and
third-country nationals removed from the EU risk nes and arrest in their countries
of origin43.
e o ence analysed in this case, involving a breach of an entry ban, is criminally
penalised in most MSs44. e possibility to introduce such criminal penalties results
from the division of powers between the EU and Member States stipulated in treaties
– MSs have the autonomy in enacting national criminal laws45. As Emmanuele
Pistoia rightly emphasizes: “Domestic criminal sanctions against illegal migrants on
ground of their illegal entry or stay in a Member State surely cover an area where
no EU provision is directly applicable”46. us, the Union cannot adopt common
42 L.Pasquali, La pena de prision para immigrantes irregulares perjudica la politica del retorno de la
Union?, “RDCE” 2011, no 39, p. 553, as quoted in: M.Strąk, Polityka…, op. cit., p. 93;
43 J.Waasdorp, A.Pahladsingh, Expulsion or Imprisonment? Criminal Law Sanctions for Breaching
an Entry Ban in the Light of Crimmigration Law, “Bergen Journal of Criminal Law and Criminal
Justice” 2019, vol. 4, no 2, p. 9.
44 EMN, e e ectiveness…, op. cit., p. 89.
45 J.Waasdorp, A.Pahladsingh, Expulsion…, op. cit., p. 9.
46 E.Pistoia, Unravelling Celaj, “European Papers” 4.05.2016, p. 709, https://www.europeanpapers.
eu/en/authors/emanuela-pistoia (2.03.2021).
216
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
uniform criminal regulations in this area and Member States’ practices in treating
third-country nationals may vary and in e ect may not guarantee uniform standards
of treatment.
Criminalisation of migration is de ned by Shahram Khosravi as “a political
strategy that rede nes a social issue into a crime: acts, positions and even human
beings are made criminal by the law”47.
In its case-law, the Court does not conduct moral inquiries into the validity of
criminal sanctions for a breach of stay or entry, but only analyses the national law
in force in its consistency with the EU law and with the objectives of the Return
Directive. e assessment of the validity of the criminalisation of migration is,
therefore, le to scholars. Eleonora di Molfetta and Jelmer Brouwer use the term
“crimmigration crisis” to describe a situation in which the boundaries between crime
control and migration control have blurred48. Crimmigration law, in turn, is de ned
as regulating the migration process by “immigration – related criminal grounds
such as unlawful entry”49. ese are types of misdemeanours and o ences that only
immigrants can commit50.
e status of an undesirable migrant, such as that of Mr JZ in the discussed
case, results in fact from a breach of hospitality and violation of principles of
the host society – commission of criminal acts which cause harm to the host
society. Criminalisation of such acts seems admissible and right in the context of
international law – especially in the context of the so-called ius communicationis
in Francisco de Vittoria’s approach, who postulated that “it is not lawful to banish
visitors who are innocent of any crime”51. Hugo Grotius spoke in a similar tone about
ius communicationis, emphasizing that the right to remain in a host country is not
absolute and may be guaranteed only to third-country nationals who obey the law of
that host country52. In the context of these re ections, an analysis of criminalisation
detached from its social consequences, though raising doubt, on the surface seems to
be consistent with the principles of human rights.
Nevertheless, criminalisation of migration has its speci c social e ects which in
turn have their consequences in standards of reception and treatment of migrants.
47 M. Kolankiewicz, M. Sager, Clandestine Migration Facilitation and Border Spectacle:
Criminalisation, Solidarity, Contestations, “Mobilities” 2012, vol. 16, p. 4, https://www.
tandfonline.com/doi/full/10.1080/17450101.2021.1888628 (12.03.2021).
48 E.di Molfetta, J.Brouwer, Unravelling…, op. cit., p. 303.
49 J.P. Stumpf, e Process is the Punishment in Crimmigration Law, (in:) K. Franko Aas,
M.Bosworth (eds.), e Borders of Punishment. Migration, Citizenship, and Social Exclusion,
Oxford 2013, p. 61. See also – J.Waasdorp, A.Pahladsingh, Expulsion…, op. cit., p. 5.
50 J.P.Stumpf, e Process…, op. cit., p. 62.
51 V.Chetail, International Migration Law, Oxford 2019, p. 21.
52 Ibidem.
217
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
It leads to the creation of the image of migrants as “external enemies”53 and to
“fuelling the threat” of the presence of TCNs in the European Union54. It is also worth
remembering that consequences of detention are not neutral to the mental state of
migrants themselves55.
Legal arguments also advocate that migration should be decriminalised – Mary
Bosworth points out that rights of detained persons are less protected than rights
of prisoners-host country nationals, and she calls this “under – criminalization”56.
In my opinion, Emanuela Pistoia delivers a key argument against criminalisation
of irregular migration – deprivation of liberty of a migrant as a result of a criminal
judgment delays the process of removal and thus weakens the return policy
implemented by the EU57.
ere is no doubt that it would be immensely valuable if the CJEU, when
analysing national legislations and not having a real opportunity to rule on criminal
law, addressed moral and social consequences of criminalisation of migration,
especially in the context of the guarantees of fundamental rights under the Charter
and the obligation to respect the dignity of each person58.
is postulate seems even more valid in the time of the COVID-19 pandemic.
e priority in an extraordinary situation such as a pandemic should involve
conducting an e ective and fastest possible third-country national’s return to his
country of origin, which in the time of the pandemic is still more di cult59. All the
more so since criminal law detention of a third-country national with an unregulated
status may pose a real risk of quicker an accelerated spread the virus. As results from
the ad hoc inquiry of the European Migration Network conducted in Member States
in 2021, they have come across numerous di culties in enforcement of returns
during the pandemic–i.a., third-country nationals did not have the chance to have
face-to-face return and reintegration counselling60. e security of a migrant’s return
53 M. Bosworth, Human Rights and Immigration Detention in the United Kingdom, (in:)
M.B.Dembour, T.Kelly (eds.), Are Human Rights for Migrants? Critical Re ections on the Status
of Irregular Migrants in Europe and the United States, London 2011, p. 171.
54 A. Tsoukala, Turning Immigrants into Security reats: A Multi – Faceted Process, (in:)
G.Lazardis (ed.), Security, Insecurity and Migration in Europe, London 2016, p. 188.
55 M.Kox, M.Boone, e Pains of Being Unauthorized in the Netherlands, “Punishment & Society”
2020, vol. 22, no. 4, p. 537.
56 M.Bosworth, Human Rights…, op. cit., p. 173.
57 E.Pistoia, Unravelling…, op. cit., p. 20.
58 Pursuant to Article 1 of the Charter, “Human dignity is inviolable. It must be respected and
protected.”
59 G.Sanchez, L.Achilli, Stranded: e Impacts of COVID-19 on Irregular Migration and Migrant
Smuggling, “Policy Briefs” 2020, no. 20, p. 4, https://cadmus.eui.eu/bitstream/handle/1814/67069/
PB_2020_20_MPC.pdf?sequence=1&isAllowed=y (29.06.2021).
60 Ad Hoc Query on 2020.81 Umbrella Inform – Covid-19 and Return – Part 2 (REG Practitioners
and NCPs). Requested by COM on 21 December 2020, Document available at: www.ec.europa.
eu/home-a airs/what-we-do/networks/european_migration_network_en (12.03.2021).
218
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
to his country of origin in the time of the pandemic should involve limitation of pre-
removal detention and instead applying an alternative to detention. Following this
postulate, I believe that in the time of the pandemic Member States should also limit
the application of criminal law provisions towards irregular migrants.
In answer to the question of how the discussed ruling ts within the existing,
relatively robust, CJEU case-law in matters of criminalisation, one must rst note that
the Court believed in JZ that a breach of an entry ban cannot be criminally penalised
where the third-country national did not leave the MS. Nevertheless, a penal sanction
can be imposed on a third-country national in a situation such as that of Mr JZ,
that is he may be punished for illegal stay. Such a sanction may be applied if it does
not deprive the Directive61 of its e ectiveness and when application of national law
ensures observance of the EU law – the CJEU invoked the existing case-law here, that
is judgments in El Dridi62, Achughbabian63 and Sagor64. Allowing criminalisation of
a breach of an entry ban – as the CJEU rules in, inter alia, Celaj65 – constitutes in fact
the EU’s indirect involvement in criminalising illegal migration66. e Court rightly
concluded that the situation of Celaj does not apply to Mr JZ since he is in a situation
of initial illegality resulting from non-compliance with a return decision, not from
breaching an entry ban and a re-entry.
In the JZ case the CJEU also upheld its ndings from Ouhrami that an entry
ban produces e ects only upon the TCN leaving the MS. In fact, both the AG and
the CJEU believe that the so-called the Achughbabian situation may be applied to
Mr JZ, according to which an illegal stay may be punished as an o ence when the
third-country national stays in the EU territory without a well-founded reason for
not pursuing a return67.
As much as legal scholars and commentators emphasize that in Filev and Osmani
and in Celaj the Court lled a certain legislative gap le by the EU legislator68, the
61 Judgment in C 806/18, para. 26.
62 See A.Crosby, e Political…, op. cit., p. 10.
63 Judgment in C 329/11.
64 Judgment in C 430/11; see judgment in C 806/18, para. 26.
65 Judgment in C 290/14.
66 J.Waasdorp, A.Pahladsingh, Expulsion…, op. cit., p. 2. In its judgment in A um, another entry
ban case, the CJEU also speci ed three situations in which a criminal sanction may be imposed
for breaching an entry-ban, ibidem, p. 18. See Judgment of CJEU of 7 June 2016 in the case of
Sélina A um v. Préfet du Pas-de-Calais and Procureur général de la Cour d’appel de Douai,
C47/15.
67 Judgment in C 806/18, para. 25; Opinion of Advocate General in C 806/18, para 25. e Court
issued a similar ruling in Sagor, op. cit.
68 A. Pahladsingh, e Legal Requirements of the Entry Ban: e Role of National Courts and
Dialogue with the Court of Justice of the European Union, (in:) M.Moraru, G.Cornelisse, Ph.
De Bruycker (eds.), Law and the Judicial Dialogue on the Return of Irregular Migrants from the
European Union, Oxford 2020, p. 122.
219
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
CJEU case-law does not seem to be likely to change as a result of the judgment in
JZ. e question of the applicability of a vague criminal standard to the so-called
Achughbabian situation (thus also JZ’s situation) invoked by the AG, and the CJEU, is
much more important in this case.
When it comes to the discussed problem, both the AG, in his opinion, and the
CJEU, in its judgment, refer to the questionable quality of the structure of the national
criminal regulation that penalizes illegal stay. Pursuant to the afore-mentioned Article
197 of the Dutch Code of Criminal Law, “a third-country national who remains in the
Kingdom of the Netherlands while knowing, or having serious reason to suspect, that
he has been declared ‘undesirable’ pursuant to a statutory provision or that an entry
ban has been imposed on him pursuant to Article 66a(7) of the Vw is, inter alia, liable
to be sentenced to a term of imprisonment not exceeding six months”69. Mr JZ argued
in his case that, in his opinion, the legal standard is intended to penalise a breach of
an entry ban70, whereas the Dutch government argued that Article 197 penalizes any
illegal stay of a third-country national with notice of an entry ban ordered against
him. It is irrelevant whether or not the third-country national has breached an entry
ban.71
When ruling on the question about the applicability of Article 197 CCL towards
Mr JZ, the Court concluded that the national court should assess its compliance
with standards resulting from the case law of the ECtHR concerning Article 5 of
the Convention. us the Court indirectly obliged the national court to examine
the consistency of the national legislation with the standards of the Charter, since
pursuant to Article 6 TEU “Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms, and
as they result from the constitutional traditions common to the Member States, shall
constitute general principles of the Union’s law”72, whereas the so-called horizontal
clauses in the Charter guarantee that “In so far as this Charter contains rights which
correspond to rights guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of those rights shall be
the same as those laid down by the said Convention. is provision shall not prevent
Union law providing more extensive protection”73.
As emphasized by the CJEU in paragraph 41 of the JZ judgment, a legal standard
must be su ciently accessible, precise, and foreseeable. Article 5 of the Convention
guarantees the right to liberty and security of person (parallel guarantees are laid
down in Article 6 of the Charter). e ECtHR has ruled numerous times on violation
69 Judgment in C 806/18, para. 15.
70 Ibidem, para. 36.
71 Ibidem, para. 37.
72 Treaty on European Union (consolidated version O.J.C 202, 7.06.2016, p. 13–46).
73 Article 52(3) of the Charter.
220
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
of Article 5 of the Convention in cases brought by third-country nationals – the
ECtHR’s case-law demonstrates that, inter alia, detained illegal migrants are entitled
to free legal assistance74, while the authorities of the Member State should act with
care and accuracy when it comes to translation of documents in cases of migrants
who do not understand the language of the host country75.
e national criminal provision should be also interpreted, in my opinion, in the
light of the so-called “harm principle” – it must be demonstrated whether a criminal
law standard that criminalises migration meets the requirement of this principle in
the perception of John Stuart Mill, who emphasized that: “(…)the only purpose for
which power can rightfully be exercised over any member of civilised community,
against his will, is to prevent harm to others”76. Gabriel J.Chin emphasizes that
national courts o en apply criminal sanctions against undocumented third-country
nationals on grounds that they are unsuitable for probation77.
e Dutch legal norm analysed in the light of the judgment contains a rather
blurry expression “an unlawful stay with notice of an entry ban”. In the context of this
discussion, it is worth attempting to answer the question regarding the degree of legal
awareness of third-country nationals. Persons who legally stay in the MS’s territory
have the opportunity to participate in orientation courses, whereas migrants from
the so-called grey zone do not have real opportunities to learn about their rights,
especially rights of a party to an administrative procedure and court proceedings.
Admittedly, Article 12 of Directive 2008/115 guarantees that:
1. Return decisions and, if issued, entry-ban decisions and decisions on
removal shall be issued in writing and give reasons in fact and in law as well as
information about available legal remedies.
(...)
2. Member States shall provide, upon request, a written or oral translation of
the main elements of decisions related to return, as referred to in paragraph 1,
including information on the available legal remedies in a language the third-
country national understands or may reasonably be presumed to understand.
74 Report of the Commission of 13 July 1982 in the case of Mohammed Zamir v. United Kingdom,
application no. 9174/80. See A.Szklanna, Ochrona prawna cudzoziemca w wietle orzecznictwa
Europejskiego Trybunału Praw Człowieka, Warsaw 2010, p. 167.
75 Judgment of ECtHR of 12 April 2005 in the case of Shamayev and Others v. Georgia and Russia,
application no. 36378/02. See A.Szklanna, …, op. cit., p. 167.
76 L.Zedner, Is the Criminal Law Only for Citizens? A Problem at the Borders of Punishment, (in:)
K. Franko Aas, M.Bosworth (eds.), e Borders of Punishment. Migration, Citizenship, and
Social Exclusion, Oxford 2013, p. 51.
77 G.J. Chin, Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the
Criminal Process, “UCLA Law Review” 2011, p. 1431, https://www.uclalawreview.org/illegal-
entry-as-crime-deportation-as-punishment-immigration-status-and-the-crim[inal-process/
(12.03.2021).
221
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
us, it may be presumed that the third-country national is aware of the content
of the administrative decision ordered against him. However, in the light of Article
12(3) this presumption is not so obvious, as:
3. Member States may decide not to apply paragraph 2 to third country
nationals who have illegally entered the territory of a Member State and who
have not subsequently obtained an authorisation or a right to stay in that
Member State.
In such cases decisions related to return, as referred to in paragraph 1, shall be
given by means of a standard form as set out under national legislation.
Given the above, it is possible that a third-country national might not be aware
of being “undesirable” in the territory of a Member State. e so-called error in law
may occur and thus, a situation in which a third-country national will not be aware
he has committed an o ence of illegal stay due to his poor degree of understanding
of the legal provision or due to the o ender’s mental level – third-country nationals
in the grey zone are o en less educated and less integrated than economic migrants.
In such a situation we may be dealing with a lack of awareness of the unlawfulness
of a prohibited act, which excludes the o ender’s criminal liability. Where national
authorities conclude that the error in law was unjusti ed (i.e., the third-country
national on his own wrongly interpreted legal standards rarely applied in a given
legislation), there are still measures that allow for this migrant to be treated as part of
a vulnerable group and for extraordinary leniency78.
In my assessment, the standard under Article 197 CCL gives room for
arbitrariness towards TCNs who should be classi ed as a vulnerable group in
proceedings before administrative and court authorities, due to their lack of
knowledge of the legal culture of the host country. A criminal regulation should not
be characterised in such a way, as AG mentioned in his opinion: “Even a benevolent
reading of this provision requires intellectual pirouettes”79.
us, perhaps, in the light of scholarly interpretation of the JZ judgment, a review
of national legislations of Member States will be necessary to ensure full protection
of migrants’ rights. I also believe that this judgment opens a door for the elimination
of criminalisation of migration in the EU countries. Recognition of absence of the
awareness of the unlawfulness of a prohibited act may become an e ective instrument
that protects migrants against criminal sanctions for illegal stay. Involvement of legal
78 Such a measure is stipulated in Article 30 of the Polish criminal code – the Act of 6 June 1997—
Criminal Code (consolidated text Journal of Laws 2020.1444). For the unequal situations of
migrants and the so-called “national criminals” see D.Weissbrodt, M. Divine, International
human rights of migrants, (in:) B.Opekin, R.Perruchoud, J.Redpath-Cross (eds.), Foundations
of International Migration Law, Cambridge 2012, p. 159.
79 Paragraph 40 of the Opinion of Advocate General in C 806/18.
222
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
scholars, and commentators, and non-governmental organizations will reinforce
it and so will encouragement for such interpretation of provisions that criminalize
migration.
Conclusions
To sum up, it seems almost certain that the discussed judgment opens great
possibilities for a scholarly discussion on the moral basis of the existence, and
possibilities of elimination, of the criminalisation of illegal immigration. e
problem of e ectiveness of the criminalisation of migration, in the light of the return
policy, gains special importance in the time of the COVID-19 pandemic80 – in
my opinion the coronavirus epidemic should encourage e ective implementation of
returns rather than placement of migrants in prisons, which, unfortunately, are o en
overcrowded and facilitate transmission of the virus. Another solution for managing
illegal migration which is worth discussing is the possibility of implementing
regularisation operations (amnesties)81.
e judgment ts within the human rights discourse on the elimination of the
criminalisation of irregular migration. It is worth noting that this is the rst CJEU
judgment on this phenomenon issued during the COVID-19 pandemic. Given the
current social situation, it gains particular signi cance. Prisons are not safe places
during the pandemic, and it is di cult to nd arguments for risking the health and
lives of third-country nationals, especially where they do not fully realize the nature
of the prohibited act committed since they do not know criminal law regulations of
the host country. All the more so, since in the light of the Union’s law, an e ective
return is to be a priority with regard to such persons. Complaints led by prisoners
to the Commissioner for Human Rights on the conditions in penitentiaries raise
concerns (i.a., guards not applying personal protection measures, or the lack of warm
water)82. We have nothing but hope that the publicizing of the judgment in question
among practitioners, including judges adjudicating in criminal cases concerning
third-country nationals, will have a positive impact on at least a partial elimination of
the criminalisation of irregular migration.
80 Ad Hoc Query…, op. cit.
81 J.H.Carens, e Ethics of Immigration, New York 2013, p. 147.
82 Koronawirus a więzienia. Skargi do RPO – na brak środków ochrony, nieprzestrzeganie zaleceń
sanitarnych, dostęp do badań, https://www.rpo.gov.pl/pl/content/koronawirus-a-wiezienia-
skargi-rpo-od-osadzonych-i-rodzin (29.05.2021).
223
Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary...
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
REFERENCES
Ad Hoc Query on 2020.81 Umbrella Inform – Covid-19 and Return – Part 2 (REG Practitioners and
NCPs). Requested by COM on 21 December 2020.
Bosworth M., Human Rights and Immigration Detention in the United Kingdom, (in:) M.B.Dembour,
T.Kelly (eds.), Are Human Rights for Migrants? Critical Re ections on the Status of Irregular
Migrants in Europe and the United States, London 2011.
Carens J.H., e Ethics of Immigration, New York 2013.
Chetail V., International Migration Law, Oxford 2019.
Chin G.J., Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the Criminal
Process, “UCLA Law Review” 2011, https://www.uclalawreview.org/illegal-entry-as-crime-
deportation-as-punishment-immigration-status-and-the-crim[inal-process/.
Crosby A., e Political Potential of the Return Directive, “Laws” 2014, no. 3.
di Molfetta E., Brouwer J., Unravelling the ‘Crimmigration Knot’: Penal Subjectivities, Punishment and
the Censure Machine, “Criminology & Criminal Justice” 2020, vol. 20, no 3.
Eule T.G., Borrelli L.M., Lindberg A., Wyss A., Migrants Before the Law. Contested Migration Control in
Europe, London and Basingstoke 2019.
European Migration Network (EMN), e E ectiveness of Return in EU Member States. Synthesis
Report for the EMN Focussed Study, 2017, https://ec.europa.eu/home-a airs/what-we-do/
networks/european_migration_network/reports_en.
Grant S., e Recognition of Migrants’ Rights within the UN Human Rights System: the rst 60 years,
(in:) M.B.Dembour, T.Kelly (eds.), Are Human Rights for Migrants? Critical Re ections on the
Status of Irregular Migrants in Europe and the United States, London 2011.
Grey C., Justice and Authority in Immigration Law, Oxford and Portland, OR 2017.
Kolankiewicz M., Sager M., Clandestine Migration Facilitation and Border Spectacle: Criminalisation,
Solidarity, Contestations, “Mobilities” 2012, vol. 16, https://www.tandfonline.com/doi/full/10.1
080/17450101.2021.1888628.
Koronawirus a więzienia. Skargi do RPO – na brak środków ochrony, nieprzestrzeganie zaleceń
sanitarnych, dostęp do badań, https://www.rpo.gov.pl/pl/content/koronawirus-a-wiezienia-
skargi-rpo-od-osadzonych-i-rodzin.
Kox M., Boone M., e Pains of Being Unauthorized in the Netherlands, “Punishment & Society” 2020,
vol. 22, no. 4.
Miller D., Strangers in Our Midst, e Political Philosophy of Immigration, Cambridge, MA 2016.
Motomura H., Immigration Outside the Law, New York 2014.
Pahladsingh A., e Legal Requirements of the Entry Ban: e Role of National Courts and Dialogue
with the Court of Justice of the European Union, (in:) M. Moraru, G. Cornelisse, Ph. De
Bruycker (eds.), Law and the Judicial Dialogue on the Return of Irregular Migrants from the
European Union, Oxford 2020.
Sanchez G., Achilli L., Stranded: e Impacts of COVID-19 on Irregular Migration and Migrant
Smuggling, “Policy Briefs” 2020, no. 20.
224
Anna Magdalena Kosińska
Bialystok Legal Studies 2021 vol. 26 nr 6
Białostockie Studia Prawnicze
Strąk M., Polityka Unii Europejskiej w zakresie powrotów. Aspekty prawne, Warsaw 2019.
Stumpf J.P., e Process is the Punishment in Crimmigration Law, (in:) K.Franko Aas, M.Bosworth
(eds.), e Borders of Punishment. Migration, Citizenship, and Social Exclusion, Oxford 2013.
Szklanna A., Ochrona prawna cudzoziemca w wietle orzecznictwa Europejskiego Trybunału Praw
Człowieka, Warsaw 2010.
Tsoukala A., Turning Immigrants into Security reats: A Multi – Faceted Process, (in:) G.Lazardis
(ed.), Security, Insecurity and Migration in Europe, London 2016.
Waasdorp J., Pahladsingh A., Expulsion or Imprisonment? Criminal Law Sanctions for Breaching an
Entry Ban in the Light of Crimmigration Law, “Bergen Journal of Criminal Law and Criminal
Justice” 2019, vol. 4, no 2.
Weissbrodt D., Divine M., International human rights of migrant, (in:) B.Opekin, R. Perruchoud,
J.Redpath-Cross (eds.), Foundations of International Migration Law, Cambridge 2012.
Zedner L., Is the Criminal Law Only for Citizens? A Problem at the Borders of Punishment, (in:)
K.Franko Aas, M.Bosworth (eds.), e Borders of Punishment. Migration, Citizenship, and
Social Exclusion, Oxford 2013.
