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
“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.”
