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