## Facts

- Hassen El Dridi, a third-country national, entered and stayed in Italy unlawfully.
- Italy issued a deportation decree against him (2004).
- In 2010, a police authority ordered him to leave Italy within five days, using a self-removal route due to lack of identification documents, lack of transport, and unavailability of detention-center space.
- El Dridi did not comply with the order to leave.
- Under Italian law, noncompliance with such an order constituted a criminal offense punishable by one to four years’ imprisonment.
- A trial court convicted El Dridi and sentenced him to one year’s imprisonment for remaining in Italy contrary to the order.
- On appeal, an Italian appellate court referred questions under the urgent preliminary ruling procedure, asking whether Directive 2008/115/EC (Return Directive), particularly its detention provisions, precluded the Italian custodial penalty at this stage of the return process.

## Issues

1. Whether Directive 2008/115/EC precludes national legislation imposing imprisonment on an illegally staying third-country national solely for failing to comply with an order to leave within a specified time.
2. Whether a custodial criminal penalty that prevents or delays implementation of the Directive’s staged return measures is incompatible with the Directive’s objectives, structure, and limits on detention for removal.

## Decision

- The Court held that the Return Directive precludes national rules imposing a prison term for mere noncompliance with an order to leave where imprisonment interrupts or delays the return procedure required by the Directive.
- The Directive establishes a graduated system prioritizing voluntary departure, followed (if needed) by enforced removal measures, with detention permitted only under strict, removal-focused conditions and safeguards.
- Imprisonment in the ordinary criminal system is liable to compromise the Directive’s objective of effective removal and repatriation by delaying actual removal and obstructing the required administrative sequence.
- Although Member States retain some authority to use criminal law, they may not exercise it in a manner that undermines EU rules governing return and detention for removal purposes.

## Legal Principles

- EU return law requires Member States to follow a structured, proportional sequence of administrative measures to secure return, moving from least to most restrictive measures.
- Detention connected to removal is permissible only within the Directive’s framework and limits (including purpose, conditions, and safeguards), and must be directed to facilitating removal.
- A custodial criminal sentence for failure to comply with an order to leave, imposed before the return procedure has been exhausted, is incompatible when it obstructs or delays the Directive’s enforcement scheme.
- Under the duty of sincere cooperation, Member States must ensure national sanctions do not defeat EU objectives and may not introduce punitive incarceration that functionally replaces or derails the Directive’s return measures.

## Conclusion

The Court ruled that the Return Directive bars imprisonment for an irregular migrant’s mere failure to leave under an administrative order when incarceration delays or interrupts the Directive’s mandated, staged administrative return process and its tightly regulated, removal-oriented detention regime.


El Dridi v. Italy, Case C-61/11 PPU (C.J.E.U. Apr. 28, 2011)