(CN) – The highest court of the European Union ruled that member states may not jail immigrants who enter their countries illegally and then refuse to leave.
The court ruled in the case of Hassen El Dridri, an Algerian without papers whom Italy ordered to leave in 2004 and again in 2010. El Dridri apparently had no identification and no means of leaving the country, and could not be placed into immigration detention since there was no room there.
Under a get-tough immigration law introduced by the Berlusconi government in 2009, Italian courts were allowed to sentence immigrants to four-year maximum prison terms if they stayed in the country after being ordered to leave.
An Italian tribunal asked the Luxembourg-based Court of Justice whether this was compatible with a 2008 European directive that laid out a specific, EU-wide procedure for deportation.
The Court of Justice wrote that the Italian law is not effective, nor sufficiently protective of fundamental rights. It noted that it considered case law from the European Court of Human Rights in its decision.
The court reiterated the EU directive’s five-step procedure, which ranges from preferring a voluntary departure, to allowing limited coercive measures when facing resistance, to potential detention for a maximum of 18 months. Under the directive, immigrants may be detained only in centers separate from criminal offenders. The directive does not apply to immigrants facing prior criminal proceedings.
Member states may not apply prison sentences to immigrants who stay in the country after being ordered to leave, the court concluded.
The Court of Justice worked on a fast-track procedure, as Dridri had been held since last year.
Countries such as Italy and France are dealing with waves of immigration from northern Africa, including refugees from areas in conflict there.
The court decision comes as the European Commission considers reintroducing border controls within the European Schengen zone, where passports are currently not required.