UN, Colombian national entered Spain legally on 9 May 2017, and exceeded the 90 days legal stay. On 13 February 2019, the Ministry of the Interior of Spain brought penalty proceedings against UN under Article 63a of the Law on foreign nationals on the ground that she did not have permission to stay in Spain. In March 2019, UN submitted an application to the Immigration Office, Pontevedra, Spain for a residence permit as a family member of an EU citizen for the purposes of family reunification with her Spanish son, in accordance with Royal Decree 240/2007. At the hearing in proceedings regarding the penalty proceedings initiated by the Ministry of the Interior, she stated that her family ties were in Spain, that she had no longer family nor means of subsistence in Colombia, her country of origin, and that she neither had a criminal record nor had been arrested previously. She also relied on humanitarian and family protection grounds and on an infringement of the principle of proportionality.
On 30 April 2019, the Director of the Pontevedra Immigration Office adopted a decision refusing UN’s application for a residence card, on the ground that she had not shown that she had been dependent on her son in her country of origin and also did not have any private health insurance in Spain. UN challenged that decision of 30 April 2019 and proceedings are still pending.
On 8 May 2019, the Subdelegada del Gobierno en Pontevedra (Representative of the Spanish State in Pontevedra, Spain) adopted, in parallel with the decision of 30 April 2019, a decision finding that UN was staying illegally, that is to say without a residence permit or a visa, and imposed on her a penalty consisting of her removal from the Spanish territory with a ban on entry for three years. In the grounds of that decision, that authority found that UN had committed the serious offence referred to in Article 53(1)(a) of the Law on foreign nationals and that she did not fall within the situations covered by the right to asylum.
On 31 October 2019, UN brought an action before the Juzgado de lo Contencioso-Administrativo No 1 de Pontevedra (Administrative Court No 1, Pontevedra, Spain), which is the referring court before which the applicant sought annulment of that decision or, in the alternative, that the removal penalty be replaced by a financial penalty, namely a fine. UN also applied for the provisional suspension of that removal penalty, and the referring court granted that application by order of 19 December 2019.
The referring court notes that, although Article 57 of the Law on foreign nationals prohibits the imposition concurrently, in respect of a third-country national staying illegally on Spanish territory, of a fine and a removal penalty, that law permits those two penalties to be imposed consecutively on such a national.
The Juzgado de lo Contencioso-Administrativo No 1 de Pontevedra (Administrative Court No 1, Pontevedra) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Must Directive 2008/115 … (Article 4(3), Article 6(1) and (5), and Article 7(1)) be interpreted as precluding national legislation … that penalises illegally staying foreign nationals in the absence of aggravating circumstances, initially, with a fine together with a request to return voluntarily to the country of origin followed, thereafter, by the penalty of removal if the foreign national neither regularises his or her situation nor returns voluntarily to his or her country?
2. Is an interpretation of the judgment of 23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260) as meaning that the Spanish authorities and courts can directly apply Directive 2008/115 … to the detriment of an individual, ignoring more advantageous national penalty legislation and thereby aggravating that individual’s liability to a penalty and possibly disregarding the principle that criminal penalties must be defined by law, compatible with its case-law on the limits on the direct effect of directives; or, conversely, should the national law more favourable to the individual continue to be applied until such time as it is amended or repealed by means of the corresponding legislative reform?’
The CJEU ruled that: Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Article 6(1) and Article 8(1) of that directive, read in conjunction with Article 6(4), and Article 7(1) and (2) of that directive, must be interpreted as not precluding legislation of a Member State which penalises a third-country national staying illegally in the territory of that Member State, in the absence of aggravating circumstances, initially by a fine together with an obligation to leave the territory of that Member State within a prescribed period unless, before the expiry of that period, that third-country national’s stay is regularised and, subsequently, if that third-country national’s stay is not regularised, by a decision ordering his or her compulsory removal, provided that that period is set in accordance with the requirements laid down in Article 7(1) and (2) of that directive.