Member States have responded to the immigration crisis to varying degrees, not only by implementing various policies but also by including national criminal law to reduce unwanted immigration.
This article, firstly, intends to explain the “return decision” in the Netherlands. Secondly, it examines how criminal law can be used in removal of a third-country nationals from the European law and European jurisprudence perspective.
A return decision (terugkeerbesluit or TKB) is a written declaration or court ruling. It states that a third-country national is not (no longer) lawfully resident in the Netherlands. This also means that he/she will have to leave the Netherlands. This is called an obligation to return. A return decision cannot be imposed on an EU/EEU or Swiss citizen.
The return decision states the time frame within which the third-country national has to leave the Netherlands. The departure period is determined on a case-by-case basis. A choice can be made to impose an immediate obligation to leave the country combined with an entry ban.
Return decision as a result of unlawful residence
A third-country national may no longer have lawful residence in the Netherlands because their temporary residence permit in the Netherlands that has expired or their application has been rejected. As a result, the third-country national has to leave the Netherlands as soon as possible. If they fail to do so on their own, the AVIM (Aliens Police) or the Royal Netherlands Marechaussee can then impose a return decision.
The following situations form an exception to this rule:
- The third-country national has submitted an application to extend or change his/her residence permit on time. And he/she is allowed to stay in the Netherlands while this application is processed.
- The third-country national has submitted an application for review or an appeal against a rejection of a previous application for a residence permit. And he/she is allowed to await this application in the Netherlands.
Return decision resulting from the rejection of a residence application
If the application for a residence permit has been rejected, it is given in the form of a letter: the formal decision. This decision is also a return decision. In that case, the third-country national is given a certain time frame within which he/she has to leave the Netherlands (the departure period). The departure period is established on a case-by-case basis. The standard period is 28 days (4 weeks). It may also be that the third-country national is not given a departure period (a so-called 0-day period). If this is the case, the third-country national has to leave the Netherlands immediately.
Use of criminal law
Use of criminal law in reducing or combatting unwanted immigration can create tensions with existing European agreements. These agreements mean that the foreign national must first go through the asylum or admission procedure. If it is determined that this has not been successfully completed, then the phases from the Return Directive will be completed and only then can criminal sanctions (such as a fine or imprisonment) be applied.
Removal of third-country nationals: The Return Directive
The return and removal of aliens have for a long time been the exclusive responsibility of the national Member State. However, the need to cooperate at European level in the field of return and removal is increasingly recognized. The 2008 Return Directive is one of the instruments for this purpose. The directive is a compromise between the European Parliament and the EU Member States to retain their national policies as much as possible but also to align the entire asylum and immigration policy of the European Union. The specific expulsion directive must put an end to the often arbitrary and non-binding expulsion policies of individual EU Member States. This regulation also explicitly takes into account human rights and the fundamental freedoms of illegal immigrants in Europe.
The ultimate aim of the Return Directive is for third-country nationals to return to a third country. The emphasis is on (voluntary) departure. In the Return Directive, a number of instruments have been given to Member States to implement the departure of the illegal third-country national:
- voluntary departure period;
- return decision;
- entry ban; and
The Return Directive provides for a gradual increase in the measures to be taken, starting with the measure that leaves the person most freedom, namely the granting of a period for his voluntary departure, and ending with the measures that limit him most, namely detention in a specialized centre.
National use of criminal law in immigration
Neither the Return Directive nor any other EU legal instrument prevents Member States from criminalizing illegal entry and / or illegal residence under national criminal law. The findings of the European Commission show that in most Member States, in different ways, it is established by law that illegal entry and / or illegal stay is punishable. Ccriminal law is used to achieve policy goals in immigration law and vice versa. The Court of Justice of the European Union (hereinafter: The Court) has clarified in a series of judgments the use of criminal law by the Member States in the context of the Return Directive. Member States may adopt criminal measures for violations of immigration rules, provided that those measures do not conflict with the effectiveness of the Return Directive.
General criminalization of illegal residence is not possible
Imposing a prison sentence on an illegal third-country national residing in the territory solely because he did not comply with an order to leave the national territory is contrary to the Directive. Making the stay as a criminal offense in itself and illegally entering and staying is contrary to the case law of the Court. The illegal stay is not criminalised. This means that the asylum or admission procedure must first be completed. If this was not successful for the foreign national, the Return Directive procedure must be followed and only then may the Member State can impose criminal sanctions on the illegal foreign national within or after the Return Directive procedure. The case law of the Court has given rise to a large number of legislative changes in a number of Member States. For example, in Affum, the Court ruled on whether France was allowed to impose a prison sentence on an illegal foreign national who was in transit in a Belgian bus to London and was intercepted at the Channel Tunnel because of illegal entry into France. According to the Court, France cannot impose imprisonment for illegal entry since the return procedure from the Return Directive had not yet been completed.
Possibilities within the EU to impose criminal sanctions on third-country nationals
The imposition of a fine on the basis of national criminal law for illegal residence is permitted. However, national legislation which offers the possibility of either imposing a fine or ordering expulsion is not allowed, as this would undermine the effectiveness of the directive: i.e. the departure of the third-country national. The CJEU states that this replacement delays the return of the illegal third-country national from the EU if he/she chooses to pay a fine and therefore to stay in the Member State while his/her removal must take precedence. The Member States are required, under their duty of loyalty and the requirements of effectiveness referred to in the directive, to carry out the removal as soon as possible. Where a fine is replaced by a home detention order, the Court finds that that order, imposed in the course of the return procedure, does not help to achieve the physical transportation of an illegally staying third-country national out of the Member State concerned. On the contrary, that home detention order may delay and impede measures such as deportation and forced return by air.
There are only three situations where the Member State has the option of imposing criminal sanctions (such as imprisonment or house arrest) on the illegal third-country national:
- when a third-country national, without a valid reason for not returning and having completed the procedure under the Return Directive, resides illegally in the territory of the Member State concerned.
- when an illegally staying third-country national has re-entered the territory of this state in violation of a re-entry ban (resulting from the application of the Return Directive)
- when other offenses are committed that are not related to illegal entry (for example, committing an offense such as theft), even in situations where the said return procedure has not yet been fully completed.
 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
 CJEU, 28 April 2011, C-61/11, El Dridi; CJEU 6 December 2011, C-329/11, Achughbabian; CJEU 6 December 2012, C-430/11, Sagor; CJEU 1 October 2015, C-290/14, Celaj; CJEU 7 June 2016, C-47/15, Affum.
 CJEU 7 June 2016, C-47/15, Affum
 CJEU 6 December 2012, C-430/11, Sagor.
 El Dridi , paragraph 55, and Achughbabian , paragraph 39 and CJEU 23 April 2015, C-38/14, Zaizoune
 CJEU, Achughbabian , para 50 and CJEU 7 June 2016, C-47/15, Affum, para. 54.
 CJEU 1 October 2015, C-290/14, Celaj and CJEU, Affum, para.64.
 CJEU, Affum , para. 65.