Professor in Law
University Jean Moulin Lyon III
Member of the Institut Universitaire de France
The meaning of the right to be heard under the so-called Returns Directive (Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals) was recently under the scrutiny of the Fifth Chamber of the Court of Justice of the European Union (CJEU). After giving its interpretation on the application of the right to be heard as regards the decision to place a third-country national in detention (CJEU, 2nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van VeiligheidenJustitie, C-383/13 PPU), the Luxembourg Court was asked to clarify how this right applied to irregular third-country nationals before a removal order was adopted against them. The Court did so in two new rulings, both following the opinion of the Advocate General Melchior Wathelet delivered on 25 June 2014: firstly, the judgment of 5 November 2014 in Sophie Mukarubega v. Préfet de police, Préfet de la Seine-Saint-Denis (C-166/13; see ML Basilien-Gainche& T Racho, ‘Quand le souci d’efficacité de l’éloignement l’emporte sur l’application effective des droits fondamentaux’ (18 November 2014) La Revue des droits de l’homme.); and secondly, on 11 December 2014, Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, case (C-249/13).
It must be noticed here that the French Supreme Administrative Court did not wait until the CJEU answered these questions, which the CJEU had been asked by some French administrative jurisdictions of first instance (the Tribunal Administratif de Melun and the Tribunal Administratif de Pau respectively). Indeed the French Conseild’Etat defined its own position on the matter in a decision published last June (CE 4 juin 2014, M. A. B., App. No 370515) : the right to be heard does not require the administrative authorities to give to the third-country national the opportunity to present his own observations on the removal order at stake, insofar that he was able to be heard before the adoption of the decision refusing him a residence permit (« dans le casprévu au 3° du I de l'article L. 511-1 du code de l'entrée et du séjour des étrangers et du droit d'asile, où la décisionfaisant obligation de quitter le territoirefrançaisest prise concomitamment au refus de délivrance d'un titre de séjour, l'obligation de quitter le territoirefrançaisdécoulenécessairement du refus de titre de séjour ; que le droit d'être entendun'impliquealors pas quel'administration ait l'obligation de mettrel'intéressé à même de présenterses observations de façonspécifiquesur la décisionl'obligeant à quitter le territoirefrançais, dèslorsqu'il a puêtreentenduavantquen'intervienne la décisionrefusant de luidélivrer un titre de séjour » (para 7)).
Yet the CJEU recognizes the importance of the right to be heard, even though the Return Directive does not establish a specific procedure for hearing a third-country national before the adoption of a return decision. In particular, the CJEU concedes that the Directive does not “specify whether, and under what conditions, observance of the right to be heard of those third-country nationals [is] to be ensured” (decision, Mukarubeaga case, para 41). Why did the Court nevertheless recognise the right to be heard? Because “the procedural autonomy of the Member States together with the absence of a specific procedure in Directive 2008/115 cannot result in a third‑country national being deprived of the right to be heard by the competent national authority before the adoption of a return decision” (AG opinionWathelet, Boudjila case, para 56), as far as the right to be heard is considered by the CJEU as a fundamental right (1).
Anyhow, such a strong consecration of the principle of this right is not complemented by the a strong protection of its implications, deceptively depriving this right of all its substance (2). This was the position of the Court in its M. G. & N. R. decision, as it considered the consequences of the violation of the right to be heard as regards detention: according to the CJEU, the infringement of this right as regards the adoption of a decision to extend the detention period has to be sanctioned, if the outcome of that administrative procedure would have been different if the third-country national concerned had been heard (CJEU, 2nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van Veiligheiden Justitie, C-383/13 PPU). The most recent judgments are also deceptive because they consume the substance of the right of be heard: insofar as the Court does not pay any attention to the factual circumstances of the administrative proceedings at stake, it fails give any consistency and thus any effectiveness to the right to be heard, to the great relief of the French government and certainly also of the other Member States.
1 – The legal basis of the right to be heard: a fundamental general principle
According to Advocate General Melchior Wathelet, the legal basis of the right to be heard had to be found in the Charter of Fundamental Rights of the European union (CFREU), more precisely in Article 41(2) on ‘Right to good administration’, which involves “the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”. In his conclusions in both cases, the Advocate General asserted the applicability of this provision to the Member States, meaning that they have to respect it when adopting decisions falling within the scope of EU law (AG opinion, Mukarubega conclusions, para 56). In his view, it would be inconsistent and incoherent to consider that the wording of Article 41(1) CFREU (“Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union”) means that provision applies solely to the EU institutions and bodies, and therefore not to Member States even when applying EU law (ibidem): such an interpretation would affect the scope of the Charter as defined in its Article 51 (“The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”).
This opinion of the Advocate General seems to be in conformity with the jurisprudence of the Court, particularly with its decision in the M.M.case (CJEU, 22 November 2012, C‑277/11; see ML Basilien-Gainche, ‘Protection subsidaire: Droit de l’étranger à êtreentendudurantl’instructiond’unedemande de protection subsidiaire’ (24 November 2012) La revue des Droits de l’Homme). After explaining that “the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions” (para 53), the CJEU asserted actually that Article 41(2) of the Charter was of “general application” (para 84). For sure, the wording of this statement must have been rather uncertain, as far as the CJEU did not follow the Advocate General on the question of the legal basis of the right to be heard in national proceedings.
But the Court did not follow the opinion on this point. Instead it ruled that “it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union”, so much so “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” (decision, Mukarubega case, para 44; decision, Boudjlida case, para 32). This does not mean that the right to be heard does not apply to the decisions adopted under Directive 2008/115/EC; it only means that the legal basis of such a right is not Article 41(2) CRFEU. The Luxembourg Court instead insisted that “observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent” (decision, Mukarubega case, para 42, citing CJEU, Sopropé, C-349/07, M.M., C‑277/11, and Kamino International Logistics, C-129/13 & C-130/13; decision Boudjlida case, para 30, citing Kamino International Logistics, C-129/13 & C-130/13, and Mukarubega, C-166/13); and hence that “such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law” (decision, Mukarubega case, para 45; decision Boudjlida case, para 34).
Consequently, the CJEU affirms that the legal basis of the right to be heard which Member States have to respect during national proceedings, particularly those under Directive 2008/115/EC, has to be found not in the Charter of Fundamental Rights (Article 41(2)), but in the “fundamental principle of EU law” of the rights of the defence. This seems to illustrate one more time how shy the Court is to affirm the prevalence of the Charter, choosing rulings after ruling to base its decision upon the EU treaties or the principles of EU law more than upon the Charter. Moreover, even though the expression appeared before (ECJ, 28 March 2000, Dieter Krombach, C-7/98, para42 ; CJEU, 22 November 2012, M.M.,C-277/11, para 82 ; CJUE, 3 July 2014, Kamino International Logistics,C-129/13 & C-130/13, para 28), we can wonder if a hierarchy is appearing among the general principles of EU law, some such principles being elevating to the status of “fundamental principle”: this should imply some consequences for the guarantee of their respect and to the sanction of their infringements, though we do not know of course how the case law will develop in future on this point. Furthermore, as far as the right to be heard is thus consecrated as a “fundamental principle of EU law”, Member States have to ensure its respect when they adopt measures which come within the scope of EU law and which significantly affect the interests of the considered addressees (decision, Mukarubega case, para 50; decision Boudjlida case, para 42).
Whereas the Court presents the right to be heard as part of the rights of the defence which constitute a fundamental principle of EU law, it does not fully guarantee the consequences of such an assertion regarding the scope of this right. This fundamental principle is exposed deceitfully by the CJEU with a highly restricted extent and content. As the Advocate General emphasises, “Article 52(1) of the Charter […] allows limitations on the exercise of the rights enshrined in the Charter, in so far as the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the European Union”, so that “the rights of defence do not constitute unfettered prerogatives and may be restricted in certain circumstances” (AG opinion, Mukarubega case, para 53; AG opinion, Boudjlidacase, para 57).
So, although it is fundamental, the principle of the right to be heard can be limited. And in these two cases we can see how far and deep such limitations can go. In order to really understand the implications of the decisions of the CJEU, and consequently to truly appreciate the weakness (even ineffectiveness) of the right to be heard for third-country nationals concerning the adoption of removal orders against them, a presentation of the facts of each case is genuinely useful.
2 – The practical scope of the right to be heard: a really limited substance
The first decision concerns the case of Sophie Mukarubega, a Rwandan national, who entered France on 10 September 2009 in possession of a passport bearing a visa. She lodged an asylum application on 4 December 2009, and therefore held a temporary residence permit during the examination of her claim. By a decision of 21 March 2011, the Office français de protection des réfugiés et apatrides (OFPRA) rejected her application for asylum, after hearing her narrative retelling (the implications of a refusal of a residence permit or of an adoption a removal order were thus not at stake). She brought an action against that decision before the Cournationale du droit d’asile (CNDA): this was heard on 17 July 2012, but was dismissed by a decision adopted on 30 August 2012 and notified on 10 September 2012. On 20 September 2012, she presented herself to the aliens service of the Préfecture de Police de Paris, in order to bring the proof of her employment for 24 months and to apply for an admission for exceptional and humanitarian reasons; but she faced what French immigration law specialists call a “refusguichet”, as the administrative authorities did not let her access the office to present her application. It must be emphasized that these facts are not mentioned either in the opinion of the Advocate General or in the decision of the Court, though they are presented in the observations submitted on behalf of Sophie Mukarubega by her lawyer Bruno Vinay, and though they are of main importance to appreciate the real (in)effectiveness of the right to be heard in this case.
Yet, on the basis of the rejection of her asylum application, the Préfet de Police de Parison 26 October 2012 issued a refusal of residence permit and an obligation to leave the French territory against Sophie Mukarubega. However, she remained in the French territory, and tried to travel to Canada, using a fraudulently obtained Belgian passport on 4 March 2013. She was then arrested and detained in custody, so the Préfet de Seine-Saint-Denis adopted on 5 March 2013 a removal order without a period for voluntary departure because of the risk of absconding. She was thus placed in a detention centre.
Next, she was heard by the OFPRA (the date is not indicated), and by the CNDA (on 17 July 2012), but solely on the grounds for being granted an international protection status: these hearings did not deal with the questions of the importance of a residence permit or the consequences of a removal order. Strangely, the CJEU does not take into account such a main procedural element, whereas “procedural decisions are often the only vehicle for taking substantive rights seriously” (Hiroshi Motomura, ‘The curious evolution of immigration law : procedural surrogates for substantive constitutional rights’ (November 1992) Columbia Law Review 1656). Afterwards, she was heard – interrogated would be actually a more suitable word – during her custody: weirdly, the Court does assert that such “police interrogation”, as the Advocate General described it in his opinion (para 31), can be considered as an hearing, though the questions asked concerned the use of fraudulent documents and not the change in her situation registered since she applied for asylum three years before.It must be emphasized how puzzling the position of the Court is: it asserts that Sophie Mukarubega “was able effectively to submit her observations on the illegality of her stay”(decision, Mukarubega case, para 70). Hence the Court misunderstands the French immigration and asylum system, when suggesting that she was heard about her stay, as far as this issue was not discussed either at her hearings at the OFPRA and the CNDA, or at her police interrogation at the airport.
Furthermore, the CJEU does not pay any attention to the fact that a period of 30 months passed between the first and the second removal orders, during which some substantial changes occurred that modified the way Sophie Mukarubegas situation could have been appreciated by the national authorities. Only the Advocate General considers that element, but in a quite odd manner: he concludes that “It is for the referring court to verify whether the change since the filing of her application for asylum in her personal circumstances, alleged in that second case by Ms Mukarubega, constitutes a reason for rendering her situation legal under Article L.313-14 of the CESEDA”, before adding that “the referring court must ensure that the application in question was filed in good faith and does not merely constitute a delaying tactic by Ms Mukarubega with the sole intention of delaying or even jeopardising the procedure before the national authorities and the possible adoption of a return decision” (AG opinion, Mukarubega case, para 87). Moreover, the Advocate General quotes the French Government observations according to which “a third‑country national who has been refused a residence permit may, at any time, present himself at the prefecture in order to be heard there again for the purpose of submitting new evidence with a view to rendering his situation legal” (AG opinion, Mukarubega case, para 81): does the Advocate General realize that going to the prefecture for an irregular migrant is the best way to be apprehended and returned without his changed situation even being considered?
The Courts position is both clear and upsetting: as regards “the obligation to hear her specifically on the subject of the return decision before the adoption of that decision...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” (decision, Mukarubega case, para 82), because this “would needlessly prolong the administrative procedure, without adding to the legal protection of the person concerned” (decision, Mukarubega case, para 70). Meanwhile “the obligation of the Member States to combat illegal immigration must be maintained” (decision, Mukarubega case, para 71). From this perspective, the Court can affirm that “the adoption of a return decision is the necessary result of a decision determining that the person concerned is staying illegally” (decision, Mukarubega case, para 59), even though this assertion implies a lack of distinction between the different administrative decisions (the one on the asylum application, the one on the residence permit, the one on the removal order). It considers these to form part of the same administrative procedure, which is greatly questionable.
3 – The very thin substance of the right to be heard
While the Mukarubega case (C-166/13) reveals how limited the extent of the right to be heard is according to the Luxembourg Court, the Boudjlida case(C-249/13) exposes the Courts restricted view of the content of this right. Khaled Boudjlida, an Algerian national, entered France on 26 September 2007 in order to pursue higher education. As he held a ‘student’ residence permit that he renewed on an annual basis, his stay in France was lawful until 31 October 2012. Since he did not apply for a renewal of his last residence permit, he became then an irregular third-country national. On 7 January 2013, he applied to register himself as a self-employed businessman in order to establish a micro-business in the field of engineering.
While he was attending an appointment with the relevant authorities, he was asked on 15 January 2013 by the border police to come to their office to be questioned on the lawfulness of his stay. He voluntarily complied with that invitation: he was interviewed by the police on his circumstances with regard to his right of residence in France. The same day, the Préfet des Pyrénées-Atlantiques issued a decision imposing on him the obligation to leave the French territory, granting him a period of 30 days for his voluntary return to Algeria. He introduced a remedy against this decision, claiming for its annulment before the Tribunal administratif de Pau. He claimed he was not in a position to analyse all the information relied on against him, since the French authorities did not disclose that information to him beforehand, did not allow him an adequate period for reflection before the hearing, did not offer him the benefit of a legal assistance, and only spent some 30 minutes interviewing him.
By deciding to stay the proceedings and to refer to the CJEUfor a preliminary ruling, the Tribunal administratif de Pau offered the opportunity to clarify the exact content of the right to be heard. Indeed, the French first instance administrative jurisdiction asked the Luxembourg Court if such a right includes, for the third-country national in respect of whom a decision falls to be taken as to whether he is to be returned, “the right 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”. To this question, the Advocate General proposed answers that seem to deprive this right of any substance. Actually, he does not consider thatthe right to be heard can “be interpreted as meaning that the competent national authority is obliged, before, issuing a return decision, to supply the person concerned with the evidence on which it intends to base that decision and to seek that person’s observations in that regard after a period of reflection” (AG opinion, Boudjlida case, para 67); “that the length of the interview is a decisive factor” (AG opinion, Boudjlida case, para 76); and that Member States are “required to bear the costs of that assistance by providing free legal aid” (AG opinion, Boudjlida case, para 76).
Let us make here one remark about the length of the interview. Does anyone really think that 30 minutes in the case of Khaled Boudjlida and 40 minutes in the case of Sophie Mukarubega is enough time to assess the complexities of the situation of such third-country nationals? Can anyone accept that such interviews take place without a lawyer /counsellor and an interpreter?
Yet the Court follows the opinion of its Advocate General so much so we can wonder what the exact content of the right to be heard really is. This right does not include the right to prior notification of the authority’s argument (“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”, decision, Boudjlida case, para 69); the right to benefit from a period of reflection (“it does not require a competent national authority […] to allow him [the third-country national] a period of reflection before seeking his observations”, decision, Boudjlida case, para 69); the right to be provided with free legal assistance (“it does not require Member States to bear the costs of that assistance by providing free legal aid”, decision, Boudjlida case, para 71, as far as ““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”, decision, Boudjlida case, para 70).
First, we obviously have to be worried by the limitation the CJEU affirmed concerning the right to benefit from a legal assistance: its statement according to which the exercise of such a right must “not affect the due progress of the return procedure” and “not undermine the effective implementation of Directive 2008/115” (decision, Boudjlida case, para 70) might lead a national authority to refuse any legal assistance to an illegally staying third-country national, since such assistance would obviously aim to prevent the implementation of the removal orders. Second, more generally, the right to be heard appears to be a purely formal right without any substantive content. It is incredible that the Court asserts that there is a presumption 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” (decision, Boudjlida case, para 69).How can the CJEU assert such an assumption? We have to ask the Court: when and where did these illegally staying third-country nationals have an effective opportunity to do this? ?
In these recent rulings, the CJEU restricts the extent and the content of the right to be heard for third-country nationals facing removal orders, so much so that this supposedly fundamental right appears to be nonexistent. The Court claims that such limitations upon the right correspond to “objectives of general interest pursued by” Directive 2008/115/EC and “do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed”(decision, Mukarubega case, para 53). How can we agree that restraining the scope of the right to be heard for irregular migrants pursues the objective of general interest of the fight against illegal migration, and is proportionate to the imperatives of achievement of such an objective? How deplorable for the Court to consecrate the fight against illegal migration! How dreadful for the Court to validate in this way the ‘legal fabric of illegality” (N de Genova, ‘The Legal Production of Mexican/Migrant Illegality’ (1996) 2/2Latino Studies 160-185; N de Genova, B Neilson & W Walters, ‘Foucault, Migrations, Borders’ (2011) 2/3MaterialiFoucaultiani149-213). Definitely, the political evil is found in the procedural details.
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