CJEU - C-249/13 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, 11 December 2014

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Country of Applicant: 
Algeria
Date of Decision: 
11-12-2014
Citation: 
C‑249/13
Court Name: 
Fifth Chamber; Court of Justice of the European Union
Headnote: 

The right to be represented by a lawyer in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 will only apply when an appeal to a return decision has been lodged and free legal assistance will be subject to national domestic legislation. 

Facts: 

Mr. Boudjlida, an Algerian national, was asked to leave French territory within 30 days after his application for a residence permit in France was refused by French authorities.

In the context of his appeal to the Pau Administrative Court, that court asked the Court of Justice of the EU (CJEU) to clarify:

- What is the extent of the right to be heard laid down by Article 41 of [the Charter] for an illegally staying third-country national in respect of whom a decision falls to be taken as to whether or not he is to be returned?

- In particular, does that right include the right [for that foreign national] to be put in a position to analyse all the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection, and to enjoy the assistance of counsel of his own choosing?

- If necessary, must the extent of that right be adjusted or limited in view of the general interest objective of the return policy set out in Directive [2008/115]?

- If so, what adjustments or limitations must be made, and on the basis of what criteria should they be established?’

Decision & Reasoning: 

The Court notes that the right to be heard in all proceedings is now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, 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 [31].

However, as found in the judgment in YS and Others, the wording of Article 41 of the Charter is addressed 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 [32-34].

As to the first question the Court relies on the argumentation in C‑166/13 Mukarubega underlying that whilst Directive 2008/115 does not specify whether and under what conditions the right to be heard for third country nationals must be ensured before the adoption of a return decision, [29] observance of the rights of the defence, codified in Articles 41, 47 and 48 of the Charter and comprising of the right to be heard in all proceedings, is a fundamental principle of EU law [29-30]. Moreover, this applies “even where the applicable legislation does not expressly provide for such a procedural requirement [37].”

In terms of rules concerning the right to be heard for an illegally staying third-country national prior to the adoption of a return decision, the Court explains that the person must be able to express his point of view on the legality of his stay. This enables the individual to submit any exceptions to Article 6, and for the authorities to observe the obligations in Article 5 of the Directive, notably best interests of the child, family life, state of health and the principle of non-refoulement [47-49]. This also follows from a reading of article 7 which allows for the period of departure to be extended, taking into account the personal circumstances of the individual.

However, following on from Mukarubega given that a return decision is closely linked to the determination that a stay is illegal, the authority is not obliged to hear the person specifically on the return decision since “his/her point of view would have been given “on the question of whether the stay was illegal [54].” Thus, the Court finds that the right to be heard prior to a return decision does not require a national authority to warn an illegally staying third-country national to disclose evidence to the applicant which they will rely upon in order to justify a return decision [55]. However, the Court submits that there is an exception to the above where the applicant “could not reasonably suspect what evidence might be relied on against him or would objectively only be able to respond to it after certain checks or steps were taken with a view, in particular, to obtaining supporting documents [56].”

On this basis the Court proceeds to explain that “in any event” the third country national may challenge the return decision by instigating legal proceedings. Thus, the Court surmises that the right to be represented by a lawyer will only apply when an appeal to a return decision has been lodged and in this case free legal assistance will be subject to national domestic legislation [67]. However, the Court notes that an individual may have recourse to a legal advisor, prior to the adoption of a return decision, but this will be at his own expense [70-71]. Finally in light of the court’s above conclusions and a ruling that Mr Boudjlida had been effectively heard before the French authorities prior to a return decision being made, the Court held that there was no need to consider the other two questions.

Outcome: 

The right to be heard in all proceedings, as it applies 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, and, in particular, Article 6 of that directive, 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, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it 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 right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, 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, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require Member States to bear the costs of that assistance by providing free legal aid.

Observations/Comments: 

In his Opinion, published on 25 June 2014, the Advocate General Wathelet furnished that, prior to the return of a third country national, the competent authority must hear the individual’s arguments concerning (a) the lawfulness of their stay, (b) the possible application of Article 5 of the Returns Directive, which requires the authority to take account of the principle of non-refoulement, the right to family life, the bests interests of the child, and individual’s state of health, and (c) the application of any exceptions to return contained in Article 6(2) to (5) of the Returns Directive – these sections cover situations in which the individual can travel to and lawfully remain in another Member State, or the individual can go to another Member State via bilateral agreement, or where there are humanitarian reasons to allow the individual to stay, or where separate proceedings for renewal of a residence permit are pending.

The AG noted that EU law does not in general require the competent national authority to give information to an individual prior to the hearing for the adoption of their return decision, nor to communicate the elements on which the authority intends to base that decision, nor to allow the individual a period of reflection before raising observations. However, such a requirement does exceptionally apply where a third country national could reasonably doubt the possible adoption of a return decision or suspect the existence of elements that could be used against him, which would require him to conduct certain verifications or to obtain supporting documentation.

On the right to legal counsel, the AG concluded that a Member State, if it permits an individual to obtain legal advice, is not obligated by EU law to enable that individual to do so by way of free legal aid. The right to seek legal advice should also not compromise the smooth running of the return procedure and the effective implementation of the Returns Directive.

The AG concluded that the overall objectives of the Returns Directive do not require any limitation to the content of the right to be heard.

Case Law Cited: 

C-418/11, TEXDATA Software GmbH

C-383/13 PPU, M. G., N. R. v Staatssecretaris van Veiligheid en Justitie

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

C‑482/10 Teresa Cicala v Regione Siciliana

YS (C-141/12), Minister voor Immigratie, Integratie en Asiel (C-372/12) v Minister voor Immigratie, Integratie en Asiel

Kamino International Logistics BV (C-129/13), Datema Hellmann Worldwide Logistics BV (C-130/13) v Staatssecretaris van Financiën

CJEU - C-269/90 Technische Universität München v Hauptzollamt München-Mitte

CJEU C-349/07 Sopropé - Organizações de Calçado Lda v Fazenda Pública

CJEU - C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General (UP)
Authentic Language: 
French
Country of preliminary reference: 
France
National / Other Legislative Provisions: 
France - Ceseda (Code of the Entry and Stay of Foreigners and Asylum Law)