CJEU - JUDGMENT OF 28.04.2011, HASSEN EL DRIDI ALIAS KARIM SOUFI, CASE C-61/11 PPU - '"AREA OF FREEDOM, SECURITY AND JUSTICE - DIRECTIVE 2008/115/EC - RETURN OF ILLEGALLY STAYING THIRD COUNTRY NATIONALS - ARTICLES 15 AND 16-NATIONAL LEGISLATION PROVIDING FOR A PRISON SENTENCE IN THE EVENT OF REFUSAL TO OBEY AN ORDER TO LEAVE THE TERRITORY" DOES THE PENALTY OF PRISON FOR IRREGULAR IMMIGRANTS JEOPARDISE THE RETURN POLICY OF THE UNION?

In this judgment, the CJEU examines the compatibility with EU Law, in particular with Directive 2008/115/CE, of a national legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State. The Court upholds that it is actually incompatible, because such a penalty risks jeopardising the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals, which is the objective pursued by that directive. The reasoning of the Court does not convince completely, mainly because the same Directive, in its Article 2 (2) (b) states that in case of a criminal law sanction, provided by national law, Member States may decide not to apply the Directive.