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

Facts of the case: Boudjlida concerns an Algerian national who 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?’

As to the first question the Court heavily cites from C‑166/13 Mukarubega in 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.

To read the Advocate General’s opinion in Boudjlida covered in the Weekly Legal Update.

12 December 2014                                      

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