France - Council of State, Interior Minister (Home Secretary) against M.A, 5 June 2015

Country of Decision:
Country of Applicant:
Date of Decision:
05-06-2015
Court Name:
Council of State
National / Other Legislative Provisions:
France - Cesda (Code pf Entry and Stay of Foreigners and Asylum Law L 511-1 II
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 551-1
France - Cesda (Code of Entry and Stay of Foreigners and Asylum Law L 561-2
France - Code of Administrative Justice
France - Law nº 2011-672 of the 16th June 2011 regarding immigration
integration and nationality
France - Law nº 91-647 of 10th July 1991
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Headnote: 

The right to be heard prior to the adoption of a return decision, implies that the administrative authority places the foreign national in a position to present, in a useful and effective manner, his point of view on the illegality of his residency and the motives which will be likely to justify the authorities abstaining from taking a return decision.

It does not, however, imply that the administration has the obligation to put the interested person in a position to present his observations in a manner specific to the decision obliging him to leave French territory or on the decision of placing him in detention pending the execution of the expulsion measure as long as he has been heard on the illegality of his residence or the prospect of expulsion

Facts: 

The concerned party was given to the French authorities by the Swiss authorities on 15 September 2012 at 13:45. He was heard by the police services but was not specifically informed that he was susceptible to be taken and placed in custody. On 15 September 2012 at 17:30 the local authorities of Doubs decided to place M.A in administrative detention.

M.A asked the Administrative Tribunal in Nancy to quash the decision of 15 September 2012 due to excess of power. The Tribunal dismissed this application.

By the judgement of the 9th November 2013, the Administrative Court of Appeal in Nancy quashed this judgement and the judgement of 15th September 2012.

In this appeal of 5th June 2015, the Interior Minister (Home Secretary) asks the court to quash the judgment and annul the arrest of the 9th November 2013. 

Decision & Reasoning: 

The decision stating the obligation to leave French territory is reasoned.

Foreign nationals have 30 days to leave French territory. This time limit can nevertheless be waived in limited cases by a decision of the administrative authorities. Exceptionally, the time limit can be extended in light of the personal situation of the foreign national.

The obligation to leave the territory cannot be subject to a unilateral administrative decision, neither before the expiration of the time limit for voluntary departure, or if no time limit has been fixed, before the expiration of 48 hours following notification through administrative channels, nor before the Administrative Tribunal has ruled, if the matter was brought before it.

If the foreign national cannot immediately leave French territory, he can be placed in detention by administrative authority in facilities which do not form part of the prison administration, for a length of five days. The foreign national must be subject to an obligation to leave the territory taken less than a year beforehand and for which the time limit has expired or has not been fixed.

If the Member States of the European Union have the obligation to respect rights of the defence, when they take measures entering the ambit of EU law, it is the responsibility of Member States, as part of their procedural autonomy to determine the conditions in which the right to be heard must be ensured for nationals of non-member states who are illegal residents.

The right to be heard before the adoption of a return decision implies that the authority places the foreign national in a position to present, in a useful and effective manner, his point of view on the illegality of his residency and the motives likely to justify the authorities abstaining from taking a return decision. It does not, however, imply that that the administration has the obligation to put the interested person in a position to present his observations in a manner specific to the decision obliging him to leave French territory or the decision placing him in detention pending the execution of the expulsion measure, as long as he has been heard on the illegality of his residence or the prospect of expulsion.

To deem that the decision to be placed in detention had been made in disregard to the right to be heard, because the interested person has not been placed in a position to present his observations in a manner specific to the decision to place him in detention while the interested party had been heard on the 15th of September 2015 and had already been subject to a decision by the prefect of the Pyrénées-Orientales obliging him to leave the territory, the Administrative Court committed an error.

The Interior Minister (Home secretary) is therefore entitled to request that the judgement of the Administrative Court of Appeal of Nancy be quashed.

 

Outcome: 

The arguments of M.A were dismissed:

The judgement of the Administrative Court of Appeal of Nancy (9th December 2013) was quashed.

The case is referred back to the Administrative Court of Appeal of Nancy. 

Subsequent Proceedings : 

The case is referred back to the Administrative Court of Appeal of Nancy. 

Observations/Comments: 

The Council of State aligns itself with the CJEU judgments in Mukarubega and Boudjilida in its finding on the right to be heard before the execution of a return decision. It, however, considers, unlike the Administrative Court of Appeal, that the right does not extend to the applicant being heard on the order to detain prior to removal, where the applicant has already had the opportunity to present submissions against the return decision itself.

This finding is in harmony with a previous judgment by the Council of State M. Halifa of 4 June 2014 which found that the right to be heard does not imply that the applicant is entitled to present specific comments on a removal order where the applicant has benefited from the right to be heard before the rejection of a residence permit.
 

This case summary was written by Harriet Hartshorn, a BPTC student at BPP University.

The case summary was proof read by Feriel Lounis, a student at BPP University.