CJEU - Case C‑166/13 Sophie Mukarubega v Préfet de police, Préfet de la Seine-Saint-Denis, 5 November 2014

Monday, November 17, 2014

Facts of the case: The case of Mukarubega concerns a Rwandan national who after being denied asylum in France was refused permission to stay and placed in administrative detention pending removal.  In response to the applicant’s submissions that her right to be heard had been infringed due to the lack of opportunity to present specific observations before the adoption of the first return decision which was taken at the same time as the refusal of a residence permit, the Melun Administrative Tribunal decided to stay proceedings and refer the following questions to the Court of Justice of the European Union (CJEU).

Questions referred for a preliminary ruling

-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 authority intends to issue a return decision in respect of an illegally staying foreign national, irrespective of whether or not that return decision is a result of a refusal of a residence permit, and in particular in a situation where there is a risk of absconding, the administrative authority must enable the interested party to present observations?

-Does the suspensive effect of the misuse of powers 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 taken against him?’

Consideration of the questions referred

In respect of the first question the Court takes note of the EU Charter of Fundamental Rights on the right to be heard, notably Article 47 and 48 (right to an effective remedy and right of defence) as well as Article 41 (right to good administration), in itself, the Court holds, an integral part of a general Union principle of the respect of rights of the defence [45]. According to the Court there is an incumbent obligation on Member States’ administrations to respect these rights when measures are taken which fall into the scope of application of Union law [50]. 

Noting that a return decision made under Article 6 of the Returns Directive necessarily spawns out of a finding that the applicant’s stay is unlawful, the Court highlighted that the administrative procedure still had to be a fair and transparent one (Mahdi, C-146/14 PPU, EU: C: 2014: 1320, paragraph 40). With this in mind the Court submitted that the applicant had been heard twice before her refugee status had been refused and a return decision was made. Her submissions were presented in a useful and effective manner and she had had the opportunity to be heard throughout the procedure. The court subsequently found that the right to be heard throughout the returns procedure does not prevent a national authority from not hearing a third country national’s submissions concerning his return decision if the procedure of confirming his unlawful stay in the territory has fully respected the right to be heard, irrespective of whether or not that return decision is a result of a refusal of a residence permit.

With regards to the second question the Court simply states that it is a hypothetical one, relating only to a situation where the right to be heard has not been respected. Given the Court’s previous submissions there is therefore no need to respond.

Based on an unofficial ELENA translation. To read the Advocate General Opinion in Mukarubega see here. For a summary of the opinion see here

14 November 2014                                      

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