Friday 16 January 2015

The right to be heard in immigration and asylum cases: the CJEU moves towards a definition

Elspeth Guild, Kingsley Napley

An essential element of a legal challenge is the right to be heard. It is often characterised as a component of rights of the defence but it has a wider ambit requiring state authorities to provide an individual with an opportunity to state his or her case before taking a decision. By and large in EU law, the right to be heard has been bundled into national procedural rights but it began to make guest appearances in CJEU judgments from 2008 and recently has taken central stage in two judgments on the Return Directive.

The starting place, however, is in a judgment about post clearance recovery of customs import duties (C-349/07 Sopropé), where the CJEU held that when state authorities take decisions within the scope of EU law they must provide the entity with the right to be heard. This is the case even in the absence of such a procedural requirement in EU law. Two conditions must be fulfilled: the right must be the same as that to which individuals or undertakings in comparable situations under national law are entitled (the principle of equivalence) and secondly the procedural rules must not make it impossible in practice or excessively difficult to exercise the right (the principle of effectiveness). These principles laid out in the 2008 judgment are having a considerable impact on EU law on third country nationals both in the context of asylum and return decisions.

Where does the right to be heard come from?

First, the source of the right: the CJEU found in 2008 (a year before the Charter became legally binding via the Lisbon Treaty) that there was an EU principle of the right to be heard. But note, in subsequent judgments it has been reluctant to embed the right in the Charter. Although the Charter has a right to good administration (Article 41(1)) which includes the right to be heard, the CJEU has held, most recently in two judgments (Mukarubega and Boudjlida, discussed here) on the Return Directive (Directive 2008/115), that this right only applies to the institutions, bodies, offices and agencies of the EU (not to Member State bodies – a finding not entirely consistent with a previous ruling on an asylum matter see below).

So the right to be heard, for instance regarding a residence permit under the Return Directive, cannot be founded on Article 41 Charter. Further, Articles 47 and 48 Charter ensure respect for the rights of the defence and fair legal process in all judicial proceedings, but while the CJEU refers in its recent judgments to these two provisions in conjunction with Article 41, it has not expressly excluded them from applicability to Member State action (as to do so would limit them to really few situations).  Instead, the Court has chosen to determine that the right is inherent in respect for the rights of the defence which is a general principle of EU law (see Boudjlida).

There is an oddity here which the CJEU does not attempt to explain. On the one hand the right to be heard is critical for the individual or entity before the state authority reaches a decision. On the facts of the cases before the CJEU which were about the decisions of a national authority that individuals were unlawfully residing on the territory and therefore the consequence was a return decision (or expulsion order), this matters a lot. The individuals had to have an opportunity to explain why their residence was lawful or why it should be regularised on the basis of their personal circumstances in order to avoid a return decision being pronounced against them.

On the other hand, the rights of the defence apply after the state authority has made its decision and the individual seeks to appeal against it. It may be a ground of the defence that the individual was never provided an opportunity to make his or her case before the decision was reached but this is an ex post argument. It is a stretch of interpretation to push the rights of the defence backwards into an administrative obligation. Further Article 47 Charter, the fair trial provision, applies in respect of any right or freedom guaranteed by EU law. But Article 48 Charter, the rights of the defence, apply when the individual is charged (a criminal charge). There are a number of nuances here regarding the right to be heard.

In MM - an asylum case - the CJEU held that the right to good administration (Article 41 Charter) includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. It went on to state that Article 41 Charter from its very wording is of general application. On this basis, and also after a consideration of the generally applicable principle of the right to be heard, the CJEU held that an asylum applicant must be heard by the national authorities responsible for determining the claim pursuant also to the rules of the Common European Asylum System. This seems to indicate that in the asylum context the CJEU was tempted to apply Article 41 Charter to national authorities but in the later decisions on the Return Directive it drew back from that position.

Nonetheless, in the Return Directive context (Boudjlida), the CJEU found that the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.

What does the right mean?

There are two parts to the right to be heard – the first is the principle of equivalence and the second the principle of effectiveness. As far as the first principle goes, the comparator is the analogous situation under national law which applies to everyone (third country national or citizen). In a Return Directive procedure, the third country national must have the same right to be heard as a citizen in a comparable procedure. But what would a comparable procedure be? The CJEU does not tell us. One can begin to imagine what kind of administrative procedure should be the gold standard - a planning application? A compulsory purchase order? An access to education dispute? It is not clear that there is one specific kind of procedure which would necessarily provide the comparator. While this is not new – one encounters the same problem as regards the correct fee for EU registration certificates which must cost no more than an equivalent document for a citizen – it is particularly vivid here. The scope of the right to be heard for a third country national seeking to avoid an expulsion decision depends on the comparator chosen. One may presume then, that the comparable procedure under national law must be one with fairly enormous consequences for the individual. It could not be a trivial administrative matter (for instance parking fines?) as the intensity of the right to be heard may be lower in such cases than where the whole centre of life of an individual is in the balance. Thus it would need to be an important matter (for instance a decision to extinguish the mechanical means to prolong someone’s life?).

The second part of the test is the right to effectiveness. The national rules must not make it impossible in practice or excessively difficult to exercise the right to be heard. Assessing this part of the test may be controversial particularly where third country nationals are involved who may not speak the language and may need substantially more assistance in putting forward their case than a national would. What might be sufficient for the right to be heard to be respected for a national in a zoning dispute may be utterly inadequate for a third country national seeking to explain why he or she cannot go back to his or her country of origin. The CJEU has had to consider the meaning of effectiveness in the context of immigration matters already. In a series of cases pre-2004 on the association agreements with the Central and Eastern European (now) Member States, the CJEU had to determine whether various provisions of immigration laws in existing Member States rendered the right of establishment for nationals of association countries impossible or excessively difficult to exercise. The test of ‘impossible or excessively difficult’ came from the agreements themselves having been borrowed by the drafters from the WTO agreements. The CJEU held in those cases that so long as state authorities exercised their discretion under immigration rules in such a way that nationals of the association countries could in fact exercise their right of establishment the test was satisfied (Barkoci and Malik).

The effectiveness requirement has also been the subject of consideration by the European Court of Human Rights (ECtHR). In Conka v Belgium that court stated that the European Convention on Human Rights is intended to guarantee rights that are not theoretical or illusory, but practical and effective. As regards the accessibility of a remedy this implies that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (para 46). That court went on to provide guidance on the elements which make a remedy effective, namely whether: it is available and sufficient to provide redress; it is sufficiently certain in practice to be accessible and effective; practical information on remedies is clearly made available to individuals affected; the language used must be one the individuals are likely to understand and interpreters must be available in sufficient numbers; and the individuals must have real possibilities to obtain legal assistance (see the full extracts from the judgment in the Annex).

The ECtHR’s assessment of effectiveness has been played out in the context of remedies rather than the right to be heard per se, but the principles are likely to be the same. For the moment it is not entirely certain that the CJEU’s effectiveness test is fully compliant with that of the ECtHR. This doubt is intensified when one examines the facts of the two Return Directive cases – Mukarubega and Boudjlida. As Basilien-Gainche sets out in her blog post on the cases, the substance of the right to be heard for these two individuals was very thin indeed (short interview of 30 – 40 minutes, for which the individuals were unprepared and had no legal assistance). Not only that, an infringement of the right to be heard results in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see the MG & NR judgment on immigration detention).

What is the purpose of the right to be heard?

In every case, the right to be heard must be guaranteed in its context, according to the CJEU. In the context of the Return Directive, the purpose is to enable the person to express his or her point of view on the legality of his stay and on whether any exception to the expulsion presumption of the Directive should be applied (Boudjlida, para 47). The directive specifically sets out the need to consider the personal and family situation of the individual, the best interests of any children, family life and the state of health of the third country national. Further there must be full respect for the asylum principle of non-refoulement (no return to a country of persecution). The individual is under a duty to co-operate with the competent authorities and to provide them with all relevant information, in particular all information which might justify a return decision not being issued (Boudjlida, para 50).

The authorities are not under a duty to disclose, prior to making a return decision, their intention of doing so and the evidence on which they intend to rely to justify the decision (Boudjlida, para 53). Only where a third country national could not reasonably suspect what evidence might be relied on against him or her does such a duty of disclosure come into existence. This disclosure duty also applies where the individual objectively would not be able to respond until certain checks or steps were taken with a view to obtaining supporting documents (Boudjlida, para 56).

Otherwise, the extent of the right to be heard only goes so far as to require that the third country national be given to opportunity effectively to submit his or her point of view on the subject of the irregularity of stay and the reasons which might, under national law, justify the authorities to refrain from adopting a return decision (Boudjlida, para 55). The purpose is to ensure that the competent authorities adopt decisions in full knowledge of the facts and are able to provide adequate reasons for the decision (Boudjlida, para 59). This rather harsh position needs to be tempered by the finding in MG and NR that the rights of the defence include not only the right to be heard but also the right to have access to the file. According to the CJEU in that case, these are among the fundamental rights forming an integral part of the EU legal order (as well as enshrined in the Charter). Compliance with these rights is not dependent on express provision anywhere of such procedural requirements.

A Right to Legal Assistance?

Bearing in mind the importance of the right to be heard and the fact that a third country national may not have a clear idea of what the relevant facts are which the competent authorities need to take into account in order to decide whether the presumption in favour of a return decision has been displaced, legal assistance is clearly an issue. On the facts of the two cases, Mukarubega and Boudjlida, it seems very likely that neither of the individuals were aware of what they were supposed to be providing other than answering questions put to them by the police. Clearly the presence of a legal advisor who could present the relevant information in a manner designed to address displacing the presumption in favour of expulsion would have been very useful. In both cases, in a manner which seems to be one of omission, the two people gave up important rights such as to delays and reflection periods, which might have been central to the proper (and potentially successful) presentation of their situations. In both cases, under the relevant French law there were simultaneous decisions on their residence status (illegality) and expulsion (a return decision). The CJEU accepted that this procedure is consistent with the Return Directive. But in such cases it is even more important that individuals actually are able to get legal assistance as the consequences of such a truncated procedure may be very grave.

In the Boudjlida case, the third country national sought to register with the national authorities as a self-employed businessman. When he attended the appointment for his registration, the border police were waiting for him. The wording of the judgment states that he was invited by the border police to come to their offices either then or on the following day and that he accompanied them to their offices where he was interviewed forthwith. One wonders exactly how the invitation was made and whether there was any question of possible detention (Ms Mukarubega had been detained but her detention had been found by a national court to be without a legal basis). It seems most odd that an educated man such as Mr Boudjlida who had followed engineering studies, would not have been aware of the importance of legal assistance in such circumstances. One also cannot help but wonder why the border police were present at the national authority responsible for registration of businesses (associated with the social security authorities). Clearly some preparatory exchanges of information and personal data had taken place between the relevant authorities.

 The ECtHR has expressed concern about the use of incomplete communications with third country nationals in order to encourage them to present themselves at interviews, the actual purpose of which is to detain and expel them. In the Conka judgment, it held “In the Court's view, [any exception to the right to liberty] must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty is not compatible with Article 5.”

In a concurring opinion, Judge Velaers stated that: “Although States are entitled to expel illegal immigrants in an effective manner and while there may not be many suitable alternatives and those there are in some cases have equally damaging consequences for the immigrants and their children, using a ruse such as that used by the Ghent police creates a danger that the public authorities will generally be perceived as not being credible in their administrative dealings with aliens illegally present on the national territory. In my opinion, that consequence means that the ruse used by the Ghent police contravened the principle of proportionality. In a State in which the rule of law applies, illegal immigrants are not without rights. They must be able to rely on communications of the administrative authorities that concern them.” One wonders whether the actions of the French police in the Boudjlida case were properly consistent with this principle of honest communication which the ECtHR has established. Perhaps the rather unclear description of Mr Boudjlida’s ‘invitation’ from the police to accompany them to the police station for an interview (which results in the very quick issuance of a return decision) reflects more than just this reader’s doubts.

According to Article 13 Return Directive, there is a right to legal assistance and legal aid where necessary, only after the return decision has been made and solely when an appeal has been brought. Nevertheless, the CJEU found that a third country national may always have recourse (but at his or her own expense) to the services of a legal advisor in the context of a return procedure (Boudjlida, para 65). The purpose of the right is to enjoy the benefit of the advisor’s assistance when being heard by the competent national authorities. But, the exercise of this right must not affect the due progress of the return procedure nor undermine the effective implementation of the Directive. It is difficult to see how access to legal advice could undermine the effective implementation of the Directive as an inadequately founded return decision is inconsistent with the Directive. Such a flawed decision is much more likely to occur where third country nationals do not receive legal advice and assistance to present their cases. For instance, individuals are not necessarily likely to know the full legal meaning of ‘best interests of the child’ or non-refoulement. A legal advisor may well be necessary in order to clarify to the competent authorities why one or other of these legal concepts, in the context of the specific facts of the case, require the issue of a residence permit to the individual rather than a return decision.

In addition, if the right to a legal advisor is a component of the right to be heard (effectively) then the competent authorities must be under a duty to make this right known to the individual. On the facts of the Boudjlida case, the CJEU states baldly “it is evident that, when [Mr Boudjlida] was interviewed… he did not request the assistance of a legal advisor (Boudjlida, para 66). One wonders what lies behind that statement, in particular whether the third country national was fully aware of the seriousness of his situation.

The matter of the due progress of the return procedure and the right to legal advice needs a little more discussion as well. It is evident from the way in which French implementation of the directive has been designed that the objective is to speed up decision making. There is one single procedure where the legality of the individual’s residence is assessed and a decision to make a return order is made. So the question arises, how should the right to legal assistance and the due progress of the return procedure be reconciled. It seems likely that some kind of balancing must take place – but exact what this should be is not specified.

At this point someone is likely to suggest that the principle of proportionality may be useful. This may be true but to make an assessment using the proportionality principle one needs to have a clear indication of what are rights and what are exceptions. On the one hand there is the right to be heard which the CJEU has established as a principle of EU law, a corollary of which is the right to legal assistance. On the other hand, one has the principle of the Return Directive that the issue of a residence permit to an irregularly present third country national is an exception to the rule. One might suggest that a principle of EU law would take priority over a principle in a Directive though this has yet to be determined. In practice, however, the central question is likely to be how much delay can be countenanced in a return procedure to ensure that the individual has effective legal assistance.  


One thing is clear from the recent CJEU judgments: there is a right to be heard before an administrative authority reaches a decision with potentially adverse consequences which EU law principle is a free standing. The applicability of the EU Charter right to good administration (Article 41) to the procedures of national authorities has been thrown into doubt at least as far as the Return Directive is concerned. It may still be hoped that the Charter provision applies in asylum procedures but this is uncertain.

The right to be heard must be both equivalent (to other national procedures) and effective. This means it is subject to a type of non-discrimination requirement and additionally must be accessible for the individual. The effectiveness component has deep roots in ECHR jurisprudence and it is worth bearing in mind that line of cases when seeking to determine the scope of the EU principle.

Finally, third country nationals have a right to legal assistance at all stages of a return procedure but states are only required to provide legal aid (subject to means testing) at the appeal stage. The only limitation to legal assistance may be a claim that it is contrary to the due process of the return process or may undermine the effective implementation of the Directive. 




Extracts, judgments in Conka v Belgium

[1]43. That factor has a bearing on the issue to which the Court must now turn, namely the Government's preliminary objection, which it has decided to join to the merits. In that connection, the Court reiterates that by virtue of Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).

44. In the instant case, the Court identifies a number of factors which undoubtedly affected the accessibility of the remedy which the Government claim was not exercised. These include the fact that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters and in a language they did not understand; only one interpreter was available to assist the large number of Roma families who attended the police station in understanding the verbal and written communications addressed to them and, although he was present at the police station, he did not stay with them at the closed centre. In those circumstances, the applicants undoubtedly had little prospect of being able to contact a lawyer from the police station with the help of the interpreter and, although they could have contacted a lawyer by telephone from the closed transit centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities did not offer any form of legal assistance at either the police station or the centre.”

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