THE BOTTOM LINE
- Criminal courts will uphold administrative entry bans, refusing to re-litigate their validity unless the ban is in “evident conflict” with EU law.
- This strengthens the government’s ability to enforce immigration decisions through criminal prosecution, creating a higher-risk environment for non-compliance.
- For businesses, this underscores the critical importance of verifying the legal status of non-EU nationals, as the consequences for individuals ignoring such bans are severe and judicially supported.
THE DETAILS
An appeal court in Amsterdam recently overturned an acquittal, convicting a non-EU national for violating a 10-year entry ban. This decision clarifies a crucial point of law for businesses operating internationally: the separation of administrative and criminal proceedings is firm. The court reinforced the principle of “formal legal force,” meaning a criminal judge will not act as an appeal court for an administrative decision, such as an entry ban. Citing a recent Dutch Supreme Court precedent, the court confirmed its role is not to second-guess the immigration authorities but to enforce the consequences of a breach.
The court did, however, outline the narrow exception to this rule. A criminal court can only set aside an entry ban if it is “evidently” in conflict with superior law, primarily the EU’s Return Directive. This is a very high threshold. In this case, the ban was issued because the individual was deemed a threat to public order. The court found no blatant or obvious error in this administrative assessment. The key takeaway for legal and executive teams is that procedural arguments against the validity of an administrative order are unlikely to succeed as a defense in a subsequent criminal case.
The ruling also provides insight into the “knowledge” requirement for a conviction. The prosecution must prove the individual knew, or had serious reason to suspect, they were subject to an entry ban. Here, the evidence was clear: the individual was personally served the decision, signed a receipt, and even instructed a lawyer to appeal the ban. The court deemed this more than sufficient to establish knowledge, dismissing any potential claims of ignorance. The conviction and prison sentence send a strong signal that ignoring formal administrative orders, particularly in the immigration context, carries significant criminal risk.
SOURCE
Source: Gerechtshof Amsterdam
