The first of these verdicts, delivered on 28th April 2011, concerned Italian law, the Italian Government not yet having transposed the directive of 2008 into its internal law 17; the second, delivered on 6th December 2011, in a case transferred from the Court of Appeal of Paris concerning article L. 621-1 of the Code for Entry and Residence of Foreigners and Right of Asylum (code de l’entrée et du séjour des étrangers et du droit d’asile), in the version of the latter posterior to the act of 16th June 2011 which, however, had not modified this article18. In both cases, the Court ruled that when a foreigner staying illegally in a Member State does not wish to leave voluntarily, the Directive obliges the said State, in the first place and above all, to take care of their physical removal from the country. Provision cannot therefore be made for penal sanctions, such as imprisonment, on the same grounds, when the said imprisonment would result in postponing the foreigner’s departure from the territory. Accordingly, in delaying deportation by the implementation of sanctions of this kind, States fail to respect the objectives of the Directive. On the other hand, when deportation measures have been applied in accordance with the Directive, but have failed to result in the foreigner’s removal from the country, sanctions of this kind may apply, that is to say when the procedures of the Directive have been implemented and, in particular, when the full period of detention provided for by national law has come to an end. In other words, in order of priority, the application of deportation measures (in accordance with the principles of the Directive) shall necessarily take precedence over prison sentences. After the first case concerning Italian law, the French Government had tried to defend the idea (cf. circular of 12th May 2011) that the case law originating from the Court of Justice only applied when a deportation measure had been taken. In reality, the prohibition of prison sentences applies as long as the implementation of deportation measures has not been attempted. In consequence, in the spring of 2011 there was a certain hesitancy as to the correct policy to be applied, which was manifested for several weeks in an appreciable fall in numbers of inmates in detention centres for illegal immigrants19. In 2012, the French Court of Cassation was called upon to draw the consequences of this case law with regard to the placing of foreigners in police custody. Under the terms of article 62-2 of the Code of Criminal Procedure (code de procédure pénale), police custody can only be decided upon, by senior law-enforcement officers, with regard to persons about whom “there are one or several plausible reasons to suspect that they have committed or attempted to commit a serious crime or an indictable offence punishable by a prison sentence”. If no imprisonment is possible as long as a deportation procedure has not been implemented, can police custody be decided upon when the sole grievance against the foreigner is the fact that their residence papers are not in order 20? In a short space of time, several judges of French courts of first instance in civil and criminal matters pronounced verdicts which answered this question in the negative21. When this issue was referred to it in the last resort, in particular by two Principal State Prosecutors, the 1st Civil Division of the Court of Cassation requested the 17 CJEU, 28th April 2011, Hassen El Dridi, alias Soufi Karim, case C-61/11 PPU; cf. Gazette du Palais, 29, 21st June 2011, note Chafai; Dalloz, 2011, Chron. (Law Reports) S. Slama, p. 1400 and 2011, Chron. (Law Reports) G. Poissonnier, p.1880. 18 CJEU, 6th December 2011, Alexandre Achughbabian, case C-329/11. Article L.621-1 of the CESEDA provides that foreigners whose residence papers are not in order incur a prison sentence of one year, a fine of €3,750 and, if necessary, may be banned from entering French territory for up to three years. 19 Cf. Annual Report for 2011 of the Chief Inspector of places of deprivation of liberty, p. 29. 20 Naturally the question is posed in a different manner if the foreigner taken in for questioning is suspected of having committed or attempted to commit other offences (under ordinary law) punishable by prison sentences. Moreover, this falls within the competence of the Court of Justice: in this case, it writes, the foreigner may be excluded from the field of application of the Directive (Achughbabian above-mentioned). 21 See the rulings quoted by G. Poissonnier, chronique (Law Reports) cited, note 37. 21