Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgement the Court interpreted the right to be heard in all proceedings, as it applies in the context of Returns Directive.
Ms Mukarubega made application for asylum to the French authorities. Her application was rejected and National Asylum Court dismissed her appeal.
In the light of the decisions on asylum refusal, the Police Commissioner adopted a decision imposing on her an obligation to leave French territory but Ms Mukarubega remained there illegally. She attempted to travel to Canada, but she was arrested by the police and detained in police custody. During her stay in custody Ms Mukarubega was heard on her personal and family situation, on the events in her life, on her right to stay in France and on a possible return to Rwanda.
Then the French authorities adopted a decision which imposed on her the obligation to leave French territory and which did not grant a period for voluntary departure because of the risk of absconding. Ms Mukarubega was informed of the option of bringing an action to stay the effect of that decision. By a separate order the French authorities held that Ms Mukarubega was not capable of immediately leaving French territory because there was no available means of transport and ordered that she be detained.
Ms Mukarubega applied for the annulment of these decisions and for the issue of a provisional residence permit and for a review of her situation. She claimed that the adoption of the decisions ordering her to leave French territory was contrary to the principle of good administration stated in Article 41(2)(a) of the Charter since she was not given the opportunity to submit her observations before those decisions were adopted. The fact that an action for the annulment of those decisions stays their effects cannot be deemed to relieve the competent authorities of the obligation to apply the principle of good administration.
Whether the right to be heard in all proceedings, as it applies in the context of Directive 2008/115 and in particular Article 6 thereof, must be interpreted as meaning that a national authority is precluded from failing to hear a third-country national specifically on the subject of a return decision where, after that authority has determined that the third-country national is staying illegally in the national territory on the conclusion of a procedure in the course of which that person was heard, it is contemplating the adoption of such a decision in respect of that person, whether or not that return decision is a result of a refusal of a residence permit.
The Court held that observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent. The right to be heard in all proceedings is affirmed not only in Articles 47 and 48 of the Charter, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (para 42-43).
The Court also held that it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union. Consequently, an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application. Such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law. The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (para 44-46).
The Court held that observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement. Thus, when the authorities of the Member States take measures which come within the scope of EU law, they are, as a rule, subject to the obligation to observe the rights of the defence of addressees of decisions which significantly affect their interests (para. 49-50).
In the operative part of the judgment the Court stated that the right to be heard in all proceedings, as it applies in the context of Directive 2008/115 and in particular Article 6 thereof, must be interpreted as meaning that a national authority is not precluded from failing to hear a third-country national specifically on the subject of a return decision where, after that authority has determined that the third-country national is staying illegally in the national territory on the conclusion of a procedure which fully respected that person’s right to be heard, it is contemplating the adoption of such a decision in respect of that person, whether or not that return decision is the result of refusal of a residence permit.
"In these recent rulings, the CJEU restricts the extent and the content of the right to be heard for third-country nationals facing removal orders, so much so that this supposedly fundamental right appears to be nonexistent."
Removal orders and the right to be heard: the CJEU fails to understand the dysfunctional French asylum system, by Marie -Laure Basilien-Gainche, available at: http://eulawanalysis.blogspot.com/2014/12/removal-orders-and-right-to-be-heard.html
"One thing is clear from the recent CJEU judgments: there is a right to be heard before an administrative authority reaches a decision with potentially adverse consequences which EU law principle is a free standing. The applicability of the EU Charter right to good administration (Article 41) to the procedures of national authorities has been thrown into doubt at least as far as the Return Directive is concerned. It may still be hoped that the Charter provision applies in asylum procedures but this is uncertain."
The right to be heard in immigration and asylum cases: the CJEU moves towards a definition, by Elspeth Guild, Kingsley Napley, available at: http://eulawanalysis.blogspot.com/2015/01/the-right-to-be-heard-in-immigration.html
Applicability - Yes or no? Right to be heard in return proceedings
Article 41 - Right to good administration