The Directive on the return of illegal immigrants precludes national rules imposing a prison term on an illegally staying third-country national who does not comply with an order to leave the national territory. A penalty such as that provided for by the Italian legislation is liable to jeopardise the attainment of the objective of introducing an effective policy for removal and repatriation in keeping with fundamental rights.

The Court considers therefore that the Member States may not provide for a custodial sentence, such as that provided for by the national legislation at issue in the main proceedings, on the sole ground that a third-country national continues to stay illegally on the territory of a Member State after an order to leave the national territory was notified to him and the period granted in that order has expired.

Mr El Dridi case was studied by the ECJ. He is a third-country national who entered in Italy illegally. In 2004 a deportation decree was issued against him, on the basis of which an order to leave the national territory within five days was issued in 2010. The reasons given for that order were that he had no identification documents, no means of transport were available and it was not possible for him to be accommodated temporarily at a detention centre as no places were available. As he did not comply with that order, Mr El Dridi was sentenced by the District Court, Trento (Italy) to one year’s imprisonment.

The Appeal Court, Trento, before which he appealed, asks the Court of Justice whether the Directive on the return of illegally staying third-country nationals (‘the Directive on return’) precludes national rules which provide for a prison sentence to be imposed on an illegally staying foreign national on the sole ground that he remains, without valid grounds, on the national territory, contrary to an order to leave that territory within a given period. That directive sets out specifically the procedure to be applied to the return of illegally staying foreign nationals and fixes the sequential order of the different stages of that procedure.

The Directive therefore pursues the objective of limiting the maximum duration of detention in the context of the return procedure and of ensuring the observance of illegally staying third-country nationals’ fundamental rights. In that regard the Court of Justice takes account of, inter alia, the case-law of the European Court of Human Rights.

The Court observes that the Directive on return has not been transposed into Italian law and states that, in such a situation, the provisions of a directive which are, so far as their subject-matter is concerned, unconditional and sufficiently precise, as is true of Articles 15 and 16 of the Directive on return, may be relied on by individuals against the Member State which has failed to transpose them.