Return decisions to third-country nationals illegally staying in Spain: consequences of the (alleged) incompatibility of Law 4/2000 with the Directive 2008/115 and the limits on the vertical direct effect of directives

Abstract

The Zaizoune Judgment of CJEU has led to a change in the Spanish Supreme Court doctrine on returning illegally staying third-country nationals. In applying the direct effect of Directive 2008/115, the Supreme Court considers the return of these citizens to be apropriate rather than applying the national law that is more beneficial to them, by imposing either a fine or removal. This paper analyses the consequences of the alleged incompatibility of the Spanish rules with the Directive, as well as the recent Spanish Supreme Court decisions that clashes head-on with the CJEU doctrine that does not recognize the reverse vertical direct effect of directives.