Scope
Article 2
1. This Regulation applies to illegally staying third-country nationals. 2. This Regulation shall not apply to persons enjoying the right of free movement under Union law, as defined in Article 2, point (5), of Regulation (EU) 2016/399 of the European Parliament and of the Council ( 27 ) . 3. This Regulation is without prejudice to the provisions of Regulations (EU) 2024/1351, (EU) 2024/1348 and (EU) 2024/1349. 4. Without prejudice to paragraph 5 of this Article, this Regulation shall not apply to any third-country national who is: (a) subject to a refusal of entry at external borders in accordance with Article 14 of Regulation (EU) 2016/399 or, in the case of a Member State not bound by that Regulation, refused entry to the territory of such a Member State in accordance with equivalent national law; (b) apprehended or intercepted by competent authorities in connection with an illegal border crossing by land, sea or air of the external border of a Member State and who has not subsequently obtained an authorisation or a right to stay in that Member State; (c) subject to return as a criminal law sanction or as a consequence of a criminal law sanction, in accordance with national law; (d) the subject of an extradition procedure. 5. A Member State may decide to apply this Regulation to one or more of the categories of third-country national referred to in paragraph 4, points (a), (b) and (c). In such cases, this Regulation shall apply to those categories of third-country national from the date on which the Member State notifies its decision to the other Member States and to the Commission. 6. Where a Member State decides to apply this Regulation to third-country nationals who are subject to return as a criminal law sanction, Articles 5, 7 and 8 shall not apply. 7. With regard to third-country nationals who are excluded from the scope of this Regulation in accordance with paragraph 4, points (a) or (b), Member States shall ensure that their treatment and level of protection are no less favourable than that set out in Article 10(9) and (10), Article 11(2), Article 11(6), points (c) and (e), Article 32(1) to (6) and Article 33, and shall respect the principle of non-refoulement. 8. This Regulation applies without prejudice to the national criminal law of the Member States, and in particular to provisions laying down effective, proportionate and dissuasive criminal penalties, including imprisonment, in relation to illegal stay, provided that the criminal procedures concerned and the application of such penalties do not jeopardise the achievement of effective returns.