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.
Mr Boudjlida entered France in order to pursue higher education. His stay in France was lawful because he was the holder of a ‘student’ residence permit, which was renewed annually. Hovewer Mr Boudjlida did not apply for the renewal of his last residence permit, and he did not subsequently apply for the issue of a new residence permit. Then the French authorities imposed on Mr Boudjlida the obligation to leave France, as he stayed there illegally.
Mr Boudjlida lodged an application for annulment of that decision with the court. He claimed that the procedure leading to that decision was unlawful because, contrary to general principles of EU law, he had not, in the course of that procedure, been given the right properly to be heard.
The administrative authorities argued that since Mr Boudjlida had not applied, for the renewal of his last residence permit in the two months preceding its expiry, he was on the day of the contested decision staying illegally. Mr Boudjlida’s right to be heard had been respected and the reasons stated in the contested decision were, in fact and in law, sufficient.
Whether the right to be heard in all proceedings must be interpreted as meaning that it includes the right of an illegally staying third-country national, on whom a return decision is to be imposed, to be put in a position to analyse all the information relied on against him which serves to justify that decision by the competent national authority, the right to have an adequate period for reflection before submitting his observations and the right to have the legal representation of his choice when he is heard.
The Court held that he right to be heard in all proceedings, as it applies in the context of Directive 2008/115 must be interpreted as extending to the right of an illegally staying third-country national to express, before the adoption of a return decision concerning him, his point of view on the legality of his stay, on the possible application of Articles 5 and 6(2) to (5) of that directive and on the detailed arrangements for his return.
However, the right to be heard in all proceedings does not require a competent national authority to warn the third-country national, prior to the interview arranged with a view to that adoption, that it is contemplating adopting a return decision with respect to him, or to disclose to him the information on which it intends to rely as justification for that decision, or to allow him a period of reflection before seeking his observations, provided that the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision.
The Court also held that the right to be heard in all proceedings, must be interpreted as meaning that an illegally staying third-country national may have recourse, prior to the adoption by the competent national authority of a return decision concerning him, to a legal adviser in order to have the benefit of the latter’s assistance when he is heard by that authority, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of Directive 2008/115.
However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, must be interpreted as meaning that it does not require Member States to bear the costs of that assistance by providing free legal aid.
"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