In the Territory: The Use of Substantive Criminal Law to Regulate the Presence of Migrants

© The Author(s) 2015
Valsamis MitsilegasThe Criminalisation of Migration in EuropeSpringerBriefs in Law10.1007/978-3-319-12658-6_3

3. In the Territory: The Use of Substantive Criminal Law to Regulate the Presence of Migrants

Valsamis Mitsilegas 

Department of Law, Queen Mary University of London, London, UK



Valsamis Mitsilegas

3.1 Introduction

The past decade witnessed a growing emphasis on the use of substantive criminal law as a means of enforcing immigration control in Europe. This chapter will map the evolution and content of such criminalisation at the European Union and national level, by exploring the intersection between migration law and criminal law at the level of the European Union and by examining the challenges that criminalisation poses for the relationship between European Union law and national immigration law. For these purposes, the chapter will employ a narrow definition of criminalisation, which is defined as the use of substantive criminal law to treat conduct related to migration flows as a criminal offence and to impose sanctions for the breach of criminal law. The analysis will take place at two levels: at the level of criminalisation of migration in the law of the European Union; and at the level of the criminalisation of migration by European Union Member States. The first part of the chapter will thus examine the various ways in which European Union law has employed criminal law in order to deal with immigration enforcement. The second part will examine the ways in which Member States of the European Union have criminalised migration and will highlight the limits that European Union law has posed on state sovereignty and the power of the state to criminalise. The chapter will thus test the protective function of European Union law, in setting limits to state power and safeguards for the migrants who fall within the reach of criminal law.

3.2 The Criminalisation of Migration in the Law of the European Union

The European Union legislator has adopted a number of measures dealing with the criminalisation of migration. However, and unlike recent trends in certain EU Member States, European Union law has not criminalised the conduct of migrants as such. Rather, the law has focused primarily at targeting individuals who facilitate in one way or another irregular migration. Such criminalisation has been founded on a broader process of securitization of migration, with phenomena of human trafficking and human smuggling viewed as global security threats linked to the threat of transnational organized crime. A second wave of criminalisation measures has been linked with the broader trend towards the privatisation of immigration control, whereby the private sector (including in this case employers) are co-opted by the State to assist in immigration control and to prevent irregular movement or stay. While such criminalisation does not necessarily lead to the imposition of criminal sanctions on migrants themselves, it has potentially a significant impact on their rights and their visibility vis-à-vis the State.

3.2.1 Criminalisation as Securitisation: The Criminalisation of Human Trafficking

The criminalisation of human trafficking and human smuggling in European Union law follows closely the approach adopted by the 2,000 United Nations Convention on Transnational Organised Crime (the Palermo Convention), with the European Union playing a key part in its negotiation.1 The Convention includes two Protocols, one on human trafficking and one on human smuggling. The first major global effort to legislate on immigration control was thus made possible on the basis of security considerations.2 According to Gallagher, “[w]hile human rights concerns may have provided some impetus (or cover) for collective action, it was clearly the sovereignty/security issues surrounding trafficking and migrant smuggling, as well as the perceived link with organized criminal groups operating across national borders, that provided the true driving force behind such efforts.”3 Rather than focusing on the rights of migrants, the Trafficking and Smuggling Protocols were justified primarily on the basis of the need to protect states from transnational criminality. This securitisation approach has been criticized heavily for effectively criminalizing migration and extending the reach of the state, with James Hathaway arguing that “the focus of the transnational effort against human trafficking on the prevention of cross-border movements created a legal slippery slope in which it proved possible to set a transnational duty to criminalize not only ‘human trafficking’ … but also the much broader phenomenon of human smuggling,”4 and that the U.N. intervention is really a pretext for the globalization of border control.5

The first major legal instrument criminalising human trafficking at EU level has been the 2002 Framework Decision on combating trafficking in human beings.6 The Framework Decision put forward a comprehensive criminalisation framework7: it established criminal offences for the trafficking in human beings which mirrored to a great extent the definitions of trafficking included in the Palermo Convention8 and called upon Member States to punish these offences with substantial sanctions.9 The Framework Decision prioritised criminalisation and enforcement over the rights of the victims of trafficking, containing only limited and general provisions on the protection of victims.10

A similar approach to victims’ rights was also reflected in the subsequent Directive on Residence Permits to Victims of Trafficking,11 which was adopted with the specific purpose “to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration”.12 The Directive places a duty on Member States to consider issuing a residence permit for victims of trafficking if the following conditions are met: the opportunity presented for the victim to prolong his or her stay on its territory for the investigations or the judicial proceedings; the demonstration by the victim of a clear intention to cooperate; and the victim having severed all relations with those suspected of human trafficking.13 The residence permit provided is entirely conditional upon the progress of the criminal proceedings—it will not be renewed if the above conditions cease to be satisfied or if a decision adopted by the competent authorities has terminated the relevant proceedings.14 Security of residence may thus be provided to victims only if they facilitate the prosecution of suspected traffickers.

The relationship between the enforcement and protective aspects of EU trafficking legislation has been somewhat rebalanced after the entry into force of the Lisbon Treaty by the recent adoption of the 2011 Directive on Trafficking in Human Beings.15 The Directive, which is the outcome of a co-decision process between the Council of Ministers and the European Parliament replaces the 2002 Framework Decision in relation to Member States who participate in it.16 The Directive extends and intensifies criminalisation, in particular by expanding the concept of exploitation in the definition of the trafficking offences,17 by raising the penalty levels for trafficking in human beings18 and by expanding the concept of vulnerability as an aggravating circumstance enhancing the penalty threshold for trafficking.19 However, at the same time it includes a wide range of provisions on the rights of victims of trafficking. The Directive includes provisions on the protection of victims of trafficking in human beings in criminal investigation and proceedings20; on assistance, support and protection measures for child victims of trafficking in human beings21; on assistance and support to child victims22; on protection of child victims of trafficking in human beings in criminal investigations and proceedings23; on assistance, support and protection for unaccompanied child victims of trafficking in human beings24; on compensation to victims and access to national compensation schemes25; and on the non-prosecution or imposition of penalties on victims for their involvement in criminal activities they have been compelled to commit as a direct consequence of being subjected to trafficking.26 The new trafficking Directive thus combines a strong criminalisation focus with an emphasis on the need to protect victims of trafficking. The Directive provisions must also be viewed in the light of the judgment of the European Court of Human Rights in Rantsev, where the Court held that trafficking was prohibited by Article 4 of the ECHR (on the prohibition of slavery and forced labour) and stressed that compliance with Article 4 requires Member States to comply with a series of positive obligations to protect victims of trafficking.27 However, and notwithstanding these developments, it should be noted that a number of the victims’ provisions in the new trafficking Directive continue to be framed in whole or in part under a logic of prosecutorial efficiency.28 Moreover, the fact remains that victim protection continues, after the adoption of the 2011 Directive, to be disassociated from security of residence as the 2004 Directive on residence permits for victims of trafficking remains in force.

3.2.2 Criminalisation as Securitisation: The Criminalisation of the Facilitation of Unauthorised Entry, Transit and Residence

An extensive criminalisation approach has been adopted in the context of the aim of combating human smuggling (or, in more neutral EU terminology, the facilitation of unauthorized entry, transit and residence), with a key question in this context being whether the criminalisation of smuggling would lead to the criminalisation of smuggled migrants themselves. This issue has been partly addressed by the Palermo Convention Protocol on the Smuggling of Migrants. While the Protocol expressly states that migrants will not become liable to criminal prosecution for the fact of having been the object of smuggling,29 the provision on the criminalisation of smuggling expressly states that it does not prevent states from taking measures against a person whose conduct constitutes an offense under their domestic law.30 The Smuggling Protocol thus does not prevent states from treating illegal entry, stay, or residence as such as criminal offenses under their domestic law.31 Moreover, the Smuggling Protocol does not exclude the criminalisation of individuals or organizations providing assistance to individuals for the purposes of them accessing or remaining in the territory of states in order to lodge an application for asylum.

An expansive approach to the criminalisation of human smuggling is reflected in EU law. The relevant legal framework is set out by a Directive defining what is called in EU law the “facilitation of unauthorized entry, transit and residence”32 accompanied—in the light of the first pillar competence limits regarding criminalisation at the time33—by a third pillar Framework Decision confirming that conduct which is defined as facilitation in the Directive will be treated as a criminal offence.34 The EU Directive goes further than the Smuggling Protocol in that it dispenses with the condition of obtaining a financial or other material benefit for the smuggling offence to be established.35 The Directive calls upon member states to adopt criminal sanctions for “any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens … ”. The Framework Decision contains a general obligation for Member States to criminalise such conduct36 and imposes specific high levels of sanctions only when certain aggravating circumstances occur.37 In spite of the lack of specificity as regards the level of criminal sanctions to be imposed by Member States,38 it is clear that the scope of criminalization at EU level is very broad as it can cover any form of assistance to enter or transit the territory of an EU Member State in breach of what is essentially administrative law (such as cases where the migrant is traveling without travel documents).

Such broad criminalisation may have a negative impact on the position of third-country nationals seeking access to the European Union in order to apply for international protection. The scope of the criminal offences prescribed in EU law may lead to the prosecution of any individual or member of an organisation who provides advice or assistance to migrants. The Directive does attempt to address this issue by providing Member States the option not to impose sanctions for human smuggling by applying their national law and practice for cases where the aim of the behavior is to provide humanitarian assistance to the person concerned.39 However, this provision is discretionary and its value in redressing the balance set out by the broad definition and criminalisation of human smuggling under EU law is questionable. By using the threat of criminal sanctions, the EU measures on human smuggling essentially aim at deterring individuals and organisations from coming into contact and assisting any third-country national wishing to enter the territory of EU Member States. As has been noted in an issue paper published by the Council of Europe Commissioner for Human Rights, “the message which is sent is that contact with foreigners can be risky as it may result in criminal charges.”40

3.2.3 Criminalisation as Privatisation: The Introduction of Employers’ Sanctions

A more recent expansion of the criminalisation of migration at EU level concerns the imposition of criminal sanctions on employers of irregular migrants. This move is part of a general trend towards the privatisation of immigration control, whereby the private sector is co-opted by the state in order to conduct what are essentially state functions of immigration control.41 Thus far the privatisation of immigration control has focused primarily on the prevention of entry into the territory by requiring the private sector (in particular carriers) to conduct immigration controls before entry into the territory—with privatisation acting thus as a form of extraterritorial immigration control.42 The imposition of criminal sanctions on employers of irregular migrants extends the privatisation of immigration control after entry in the territory, thus multiplying the criminal law enforcement avenues for those deemed to facilitate irregular residence. However, and along with the broader question of whether the private sector can legitimately be asked to assume immigration control duties, the extent to which criminal law is the most effective and proportionate means of privatising immigration control is contested.

The debate on the extent to which criminalisation is the optimal way forward towards privatising immigration control by imposing obligations on employers is reflected in the content of the recently adopted EU Directive on employers’ sanctions.43 The Directive prohibits the employment of ‘illegally staying’ third-country nationals.44 An ‘illegally staying’ third-country national are defined as ‘a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State.’45 The scope of the Directive is thus broad, apparently including the employment of both third-country nationals who have entered the territory of a Member State irregularly, and the employment of overstayers. In addition to this prohibition, the Directive imposes a series of extensive immigration-related duties upon employers, including identification, record-keeping and reporting duties on employers.46 Sanctions for the infringement of the prohibition to employ ‘illegally staying’ third-country nationals are mainly financial,47 but the Directive provides also for alternative sanctions such as exclusion from public procurement.48 Failure to comply with the identification and reporting duties imposed by Article 4(1) of the Directive also triggers liability for the infringement of the prohibition of illegal employment set out in Article 3: the Directive obliges Member States to ensure that employers who have fulfilled these obligations are not held liable for an infringement of the prohibition of illegal employment unless the employers knew that the document presented as a valid residence permit or another authorization for stay was a forgery.49 The Directive thus attempts to strike a balance between the aim of rendering employers responsible for checking and recording residence permits of third-country nationals on the one hand, and the aim of addressing the employers’ concerns that they are in no position to proactively identify forged documents on the other. However, it is clear that by equating liability for illegal employment with liability for failure to comply with identification obligations, the Directive aims at establishing a far-reaching layer of privatised control of third-county nationals residing in the territory of EU Member States.

While the employers’ sanctions Directive imposes a wide range of duties to the private sector, the use of criminal law for the breach of these duties is limited to specific circumstances. Criminal law sanctions apply only for the intentional infringement of the prohibition of illegal employment under Article 3 (and not for the breach of the identification, recording and reporting obligations set out in Article 4 of the Directive); in accordance with the limits to the then first pillar (Community) criminal law competence set by the Court of Justice in its ship-source pollution ruling,50 the level of criminal sanctions is not specified (infringements are punishable in general by effective, proportionate and dissuasive criminal penalties)51; and criminal sanctions apply only if the following aggravating circumstances occur as regards the infringement of Article 3: the infringement continues or is persistently repeated; is in respect of the simultaneous employment of a significant number of illegally staying third-country nationals; is accompanied by particularly exploitative working conditions; is committed by an employer who, while not having been charged with or convicted of a human trafficking offence, uses work or services exacted from an illegally staying third-county national with the knowledge that he or she is a victim of trafficking in human beings; or relates to the illegal employment of a minor.52 The Directive thus uses criminal law to address not only traditional aggravating circumstances (such as persistent offending) but also as a means of acknowledging the need to protect vulnerable migrants who are subject to various forms of exploitation.

The proclaimed focus of the Directive on tackling exploitation53 is also reflected in the insertion of further provisions aimed at targeting the private sector when employing irregular migrants under exploitative conditions. At the heart of these provisions is an effort to make irregular migrants come forward and report instances of exploitation. In this light, the Directive places Member States under the duty to ensure that there are effective mechanisms through which third-country nationals in illegal employment may lodge complaints against their employers, directly or through third parties designated by Member States such as trade unions or other associations or a competent authority of the Member State.54 Member States must ensure in this context that third parties which have a legitimate interest in ensuring compliance with the Directive, may engage either on behalf of or in support of an illegally employed third-country national, with his or her approval, in any administrative or civil proceedings provided for with the objective of implementing the Directive.55 However, the legal position of third parties who assist irregular migrants in this context is uncertain, as, was analysed earlier in the chapter, they may be held criminally liable for facilitating unauthorised residence. Acknowledging this risk of criminalisation, the employers’ sanctions Directive includes a safeguard clause according to which providing assistance to third-country nationals to lodge complaints will not be considered as facilitation of unauthorized residence under Directive 2002/90/EC.56

The Directive does not stop there, but includes a call to irregular migrants themselves to cooperate with state authorities with the view of tackling employer exploitation. Adopting a strategy similar to the content of the Directive on residence permits on victims of trafficking (analysed earlier in the chapter), the employer sanctions Directive states that, in respect of criminal offences covered by Article 9(1)(c) (the infringement is accompanied by particularly exploitative working conditions) or (e) (the infringement relates to the illegal employment of a minor), Member States will define in national law the conditions under which they may grant, on a case-by-case basis, permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals involved, under arrangements comparable to those applicable to third-country nationals who fall within the scope of Directive 2004/81/EC (residence permits for victims of trafficking).57 As with the Directive on residence permits for victims of trafficking, the employer sanctions Directive provides with extremely limited safeguards on security of residence: residence permits will be granted on a case-by-case basis (thus subject to state discretion), will be of limited duration, and are again framed purely within a logic of prosecutorial efficiency (they are linked to the relevant national proceedings). The Directive thus asks migrants in an irregular situation to come forward and present themselves to the state without offering any legal certainty as to the rights which will be conferred to them if they cooperate and without excluding the prospect of their subsequent return. It remains to be seen whether this provision when implemented by Member States will have any real impact, especially in view of the fact that the vulnerability of exploited workers is not necessarily reflected in detail in EU law compared to the vulnerability of victims of trafficking.

The above analysis demonstrates a double contradiction at the heart of the employer sanctions Directive: the Directive’s main objective is to apply what Garland has called the ‘responsibilisation strategy’58 to the private sector, by requiring employers to (pro)actively cooperate with the state in tackling irregular employment. Employers are thus viewed as allies to the state, but at the same time they are viewed as targets: irregular migrants, trade unions and other organizations are urged to come forward and denounce exploitation in the workplace. This contradiction is also replicated with regard to migrants themselves: irregular migrants are seen as allies to the state (in being helpful in denouncing exploitation) but they are also obviously the main targets of the Directive, whose aim is to make it more and more difficult for these migrants to find work. This double contradiction poses real obstacles to the Directive achieving its stated aims. It is compounded by the fact that the criminalisation of migration in other EU law instruments provides few safeguards for migrants and citizens alike. The extensive criminalisation of the facilitation of unauthorised entry and residence has the potential of minimising contact by NGOs, other organisations and individuals with migrants under the threat of criminal prosecution. On the other hand, migrants are offered with extremely limited rights as a reward for them cooperating with the state to tackle irregular migration. As will be seen in the next part, however, the disassociation of this law and policy area from pure state discretion and the very existence of secondary EU law in these fields may be a step forward towards providing safeguards from migrants, when interpreted in the light of European Union constitutional law and its general principles.

3.3 European Union Law as a Limit to the Criminalisation of Migration by EU Member States

While European Union law has not explicitly treated breaches of immigration requirements by migrants themselves as criminal offences as such, such trends have been increasingly prevalent in the national legislation of a number of EU Member States. Key examples in this context have been the treatment of irregular entry and residence per se as a criminal offence; and the criminalisation of the failure to comply with return instructions. This punitive turn at the national level has posed considerable challenges for European Union law. The shared competence between Member States and the European Union in the field of migration law raises complex issues with regard to the degree of sovereignty or discretion left to Member States when they legislate on irregular migration and when they promote legislative choices resulting in the criminalisation of migration. A key question in this regard is whether European Union law poses limits to the power of Member States to adopt national legislation in the field. This part of the chapter will examine the limits that European Union law places on domestic criminal law in general. The analysis will then focus on two recent judgments of the Court of Justice of the European Union focusing specifically on the compatibility of national legislation criminalizing migration with European Union law. The limits posed to the national legislator by EU law will be dissected, and the protective function of European Union law as regards the position of the migrant will be highlighted.

3.3.1 The Limits of EU Law on National Criminal Law

The debate on the existence and extent of a role for the European Union in the field of criminal law has been long-standing.59 It appeared long before Member States decided to confer express powers to the European Union (but not to the then European Community) to legislate in criminal matters (in the Maastricht Treaty) and certainly before the entry into force of the Lisbon Treaty which abolished the third pillar and streamlined to a great extent Union powers in the field. Already in the days of the Treaty of Rome, it became clear that it was impossible to draw a neat distinction between legislation related to the four freedoms and the single market on the one hand, and criminal law on the other. While the European Community at the time did not possess express competence to adopt criminal offences and sanctions at EC level, the European Court of Justice confirmed in a number of occasions that Community law places limits on the application of national criminal law. The Member States of the European Union are not entirely free to adopt national criminal law but are bound by their EU law obligations when doing so. The Court of Justice has placed limits on domestic criminal law measures if the latter would have as its effect to limit disproportionately rights established by Community law, in particular rights related to free movement. As early as 1981, the Court stated in Casati that

In principle, criminal legislation and the rules of criminal procedure are matters for which the Member States are still responsible. However, it is clear from a consistent line of cases decided by the Court, that Community law also sets certain limits in that area as regards the control measures which it permits the Member States to maintain in connection with the free movement of goods and persons. The administrative measures or penalties must not go beyond what is strictly necessary, the control procedures must not be concerned in such a way as to restrict the freedom required by the Treaty and they must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom.60

The Court justified this approach on the grounds of the necessity to prevent the erosion of Community law freedoms by national measures.61 The Court’s approach is based on the principle of proportionality.62 In subsequent cases, and in order to ensure the effective exercise of Community rights, the Court has not hesitated to check the compatibility with Community law of domestic criminal laws penalising conduct as diverse as driving without a licence in the host Member State (resulting from failure to exchange within the time limits prescribed by the law of the host State the home state driving licence with the host state licence),63 and pursuing the organised activity of collecting bets without a licence or a police authorisation.64 In addition to prescribing limits to the imposition of criminal sanctions by Member States, the Court has also found that Community law had an influence in the conduct of domestic criminal proceedings—more specifically, national autonomy in prescribing the language of criminal proceedings may be limited in order to ensure non-discrimination against persons to whom Community law grants equal treatment rights, as well as free movement.65 It is clear from these cases that the fundamental Union law objective of free movement places considerable limits to national sovereignty in legislating in criminal matters, with European Union law acting as a safeguard against overcriminalisation at national level.66

This general overview of the limits European Union law places on the power of Member States to criminalise suggests that similar limits apply to the power of Member States to treat breaches of immigration rules as criminal offences. The existence of such limits has now been confirmed by the Court of Justice in two judgments concerning the compatibility of national law criminalising migrants with European Union law. What is significant in these judgments (which will be analysed in detail below), is that the Court examined the compatibility of domestic criminal law not with European Union law on free movement, but with European Union immigration law, and in particular legislation dealing with the enforcement of immigration law (the Returns Directive).

3.3.2 The Limits of EU Migration Law on National Criminal Law—the El Dridi Ruling

In the case of El Dridi 67 the Court of Justice examined a preliminary reference request made in proceedings brought against Mr El Dridi, who was sentenced to 1 year’s imprisonment for the offence of having stayed illegally on Italian territory without valid grounds, contrary to a removal order made against him by the Questore di Udine. He appealed against that decision before the Corte d’appello di Trento (Appeal Court, Trento). That court was in doubt as to whether a criminal penalty may be imposed during administrative procedures concerning the return of a foreign national to his country of origin due to non-compliance with the stages of those procedures, since such a penalty seems contrary to the principle of sincere cooperation, to the need for attainment of the objectives of Directive 2008/115 (the returns Directive) and for ensuring the effectiveness thereof, and also to the principle that the penalty must be proportionate, appropriate and reasonable. The Court of Appeal noted in particular that the criminal sanction provided for in Italian law came into play subsequently to the finding of an infringement of an intermediate stage of the gradual procedure for implementing the return decision, provided for by the returns Directive and that the level of penalty imposed by national law (a term of imprisonment of 1–4 years) seems, to be extremely severe. In those circumstances, the Corte d’appello di Trento decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

In the light of the principle of sincere cooperation, the purpose of which is to ensure the attainment of the objectives of the directive, and the principle that the penalty must be proportionate, appropriate and reasonable, do Articles 15 and 16 of Directive 2008/115 … preclude:

  • the possibility that criminal penalties may be imposed in respect of a breach of an intermediate stage in the administrative return procedure, before that procedure is completed, by having recourse to the most severe administrative measure of constraint which remains available?

  • the possibility of a sentence of up to 4 years’ imprisonment being imposed in respect of a simple failure to cooperate in the deportation procedure on the part of the person concerned, in particular where the first removal order issued by the administrative authorities has not been complied with?68 The Ruling of the Court of Justice

The Luxembourg Court summed up the referring court’s question as asking whether Directive 2008/115, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period. The CJEU noted in this context the emphasis placed by the national court on the principle of sincere cooperation and on the objective of ensuring the effectiveness of EU law.69 In the light of this question, the CJEU followed a step-by-step approach in order to assess the compatibility of Italian law with EU migration law (the returns Directive). Step 1: Interpreting the Returns Directive Restrictively in the Light of Fundamental Rights

The first step in the Court’s reasoning in El Dridi was to provide an interpretation of the returns Directive, which will inform the implementation of the Directive by Member States. The Court confirms a restrictive interpretation of the coercive provisions of the Directive, stressing from the outset that the Directive pursues the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and also their dignity.70 Member States can depart from the common standards and procedures established by the Directive only as provided for therein.71 In any case, although Article 4(3) of the Directive allows Member States to adopt or maintain provisions that are more favourable than Directive 2008/115 to illegally staying third-country nationals provided that such provisions are compatible with it, that directive does not allow those States to apply stricter standards in the area that it governs.72 The Court further observes that the returns Directive sets out specifically the procedure to be applied by each Member State for returning illegally staying third-country nationals and fixes the order in which the various, successive stages of that procedure should take place.73 It is only in particular circumstances, such as where there is a risk of absconding, that Member States may, first, require the addressee of a return decision to report regularly to the authorities, deposit an adequate financial guarantee, submit documents or stay at a certain place or, second, grant a period shorter than 7 days for voluntary departure or even refrain from granting such a period.74

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