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.  

Conclusion

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. 

 

Annex

 

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.”

Removal orders and the right to be heard: the CJEU fails to understand the dysfunctional French asylum system

 

 

Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III

Member of the Institut Universitaire de France

 

Introduction

 

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, 2^nd 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, 2^nd 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? ?

 

Conclusion

 

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.