CJEU - C-166/13, Sophie Mukarubega v Préfet de police, Préfet de la Seine-Saint-Denis

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Date of Decision: 
Court Name: 
Fifth Chamber of the Court of Justice of the European Union
Relevant Legislative Provisions: 

This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.

It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision. 


The applicant is a national of Rwanda who made an application for asylum in France after entering on a valid passport on 10 September 2009.

The OFPRA (Office for the protection of refugees and stateless persons) rejected her application in a decision of 21 March 2011. The decision was upheld by the CNDA (National Court of Asylum) on 30 August 2012.

On 26 October 2012, the Police Commissioner issued a decision refusing the applicant a refugee residence permit and imposing an obligation on her to leave France (‘the first return decision’) with Rwanda was set as the country to which she was liable to be removed.

The applicant remained in France illegally and was arrested and detained by French police after attempting to use a fraudulently obtained Belgian passport. The police interviewed her in relation to her personal and family situation, her right to stay in France and her possible return to Rwanda.

On 5 March 2013, the Prefect of Seine-Saint-Denis made a decision imposing an obligation on the applicant to leave French territory (‘the second return decision’).

The applicant applied for the annulment of the two return decisions. She claimed that she was not given the opportunity to submit her observations on her personal circumstances prior to the adoption of the decisions ordering her to leave French territory which were taken at the same time as the refusal of her residence permit, contrary to the principle of good administration stated in Article 41(2)(a) of the Charter.

 The Tribunal administratif de Melun stayed enforcement of the applicant’s removal and referred the following questions to the Court of Justice for a preliminary ruling:

‘1.      Is the right to be heard in all proceedings, which is an integral part of the fundamental principle of respect for the rights of the defence and is furthermore enshrined in Article 41 of [the Charter], to be interpreted as requiring that, where the administrative authorities intend to issue a return decision in respect of an illegally staying foreign national, irrespective of whether or not that return decision is the result of a refusal of a residence permit, and in particular in a situation where there is a risk of absconding, the authorities must enable the interested party to present observations?

2.      Does the suspensive effect of the judicial proceedings before the administrative court mean that it is possible to dispense with the prior right of an illegally staying foreign national to make his observations known with regard to the proposed removal measure to be imposed on him?’

Decision & Reasoning: 

The court noted that Directive 2008/115 establishes common standards and procedures which must be applied by each Member State to the return of illegally staying third country nationals; including formal requirements for return decisions. However EU law did not specify the conditions under which observance of the rights of defence of illegally staying third-country nationals is to be ensured, nor the consequences of the infringement of those rights. As such, these conditions and consequences fell within the scope of national law, subject to the principles of equivalence and effectiveness.

According to settled case law, and affirmed in Articles 41, 47 and 48 of the Charter, the right to be heard was a fundamental general principle of EU law, which must be observed even where it is not provided for expressly in the applicable legislation. In this case, neither national legislation nor the Directive established a specific procedure designed to ensure that illegally staying third-country nationals have the right to be heard before the adoption of a return decision.

However Article 6(1) of the directive states that as soon as it has been determined that a stay is illegal the competent national authorities must adopt a return decision, which may be adopted at the same time. As they are concomitant decisions, the right to be heard cannot require the competent national authority to hear the person concerned specifically on the return decision, where this is being made at the same time as the determination that their stay is illegal. This is because the person would have already had the opportunity to effectively present his or her views on the legality of their stay and potential grounds to prevent the adoption of a return decision within the procedure relating to the application for residence.

French national law (L.511-1 CESEDA) explicitly provided that a person may be obliged to leave French territory at the same time as the refusal of their residence permit.

Prior to the first return decision the applicant was given the opportunity to comprehensively set out her grounds for asylum, on two occasions (OFPRA and CNSA), which were rejected after she had exhausted all legal remedies provided for in national law.

The obligation to hear her specifically on the subject of the return decision before the adoption of that decision would needlessly prolong the administrative procedure, without adding to the legal protection of the person concerned. In any event, she had been heard in relation to her right of residence in France during her police interview.  


The CJEU concluded that the right to be heard in the context of  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Article 6, 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.

Given that the right to be heard had been respected, it was not necessary to answer the second question, which sought to ascertain whether an infringement could be cured by the applicant’s ability under national law to bring proceedings with a suspensive effect. 


Advocate General Wathelet in his opinion delivered on 25 June 2014 notes that “ a fair balance must be sought between the right to be heard before the adoption of a return decision and the need not to needlessly or abusively prolong the return procedure, in order not to jeopardise the combating of illegal immigration.”

His opinion takes into account observations from the French Government, the Netherlands Government, the Greek government and the Commission. He proposed the following response to the questions referred for a preliminary ruling by the Tribunal administratif de Melun:

(1)         Where a national authority has determined the illegality of the stay of a third-country national following a decision refusing him asylum upon the conclusion of a procedure which fully respected his right to be heard as laid down by the general principles of EU law and established by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, EU law does not require that authority to hear that person again before issuing a return decision against him.

The fact that a national authority has respected the right of a person concerned to be heard, as required by the general principles of EU law laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, in a particular case (for example, an application for asylum) does not exempt it from hearing that person again in the context of a procedure initiated on a different legal basis (for example, an application for legalisation of residence for humanitarian reasons), even if the aim of the two applications is substantially the same (in this case, recognition that a stay is legal).

(2)         Where the limitations allowed by Article 52(1) of the Charter of Fundamental Rights of the European Union are not applicable, the right of an illegally staying third-country national to bring proceedings with suspensive effect before a national court does not exempt the national administrative authorities from hearing that person again before issuing a return decision against him

“Removal orders and the right to be heard: the CJEU fails to understand the dysfunctional French asylum system” Professor Marie-Laure Basilien-Gainche, 12 December 2014

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Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)