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

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.