Case C-61/11 PPU, ElDridi
Valeria Ilareva[1 ]and Diana Radoslavova
The prioritization of the immigration issues among the common policies of the European Union has coincided with a relatively new tendency for a negative perception of immigration by the public in Europe. Justified or not, the public opinion exerts influence on national politics. The El Dridi case concerns such a reaction by the Italian government – in 2009 Italy criminalized the very presence without legal ground on its territory. However the common legal framework that had been developed by the European Union played the role of a deterring factor against the adoption of extreme coercive measures at national level. Article 67 (2) of the Treaty on the Functioning of the European Union states that the common policy on asylum, immigration and external border control is based on solidarity between Member States and is fair towards third-country nationals. In the El Dridi case the Court of Justice of the European Union embarked on a search for this right balance towards an effective immigration policy.
The judgment in the ElDridi Case C-61/11 PPU is the second pronunciation of the CJEU on the Returns Directive (Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third country nationals). The first time the Court interpreted the Directive in the Kadzoev Case C-357/09 PPU on a request for a preliminary ruling by a Bulgarian court. The subject matter in both cases concerns the detention of immigrant’s detention for the purpose of executing a removal order. The judgment in El Dridi is consistent with the Court’s approach towards restrictive interpretation of the limitations on fundamental human rights such as the right to liberty. The Court went on to underline the need to ensure the effectiveness of EU law and thus to give priority to the purpose of the Directive over national policies. The Court therefore ruled that the Returns Directive must be interpreted as precluding a Member State’s legislation, which provides for a sentence of imprisonment to be imposed on an illegally residing third-country national on the sole ground that he remains, without valid grounds, on the territory of that State. On the one hand, the Court recognized the right of discretion of Member States in finding practical responses to the challenges of immigration. On the other hand, the Court of Justice of the European Union underlined that the common policy of the Union in the field of immigration which implies the respect of fundamental human rights as a general principle is the framework for the exercise of the Member States’ margin of discretion concerning national immigration policies.
Линк към статията на български език: В ТЪРСЕНЕ НА ПРАВИЛНИЯ БАЛАНС ЗА ЕФЕКТИВНА ИМИГРАЦИОННА ПОЛИТИКА
Attorney at law, PhD in International Law and International Migration and Social Integration from the University of Sofia and University Complutense of Madrid. HeadlawyerattheLegalClinicforRefugeesandImmigrantsinBulgaria.
Attorney at law,MasterinInternationalLaw from Handong International Law School, South Korea. She has worked with refugees and vulnerable groups in the USA, Pakistan and Thailand. HeadlawyerattheFoundation ‘CentreforLegalAid – VoiceinBulgaria’.