Removal Orders As Well As The Correct To Endure Heard: The Cjeu Fails To Sympathise The Dysfunctional French Asylum System
November 26, 2018
Edit
Marie-Laure Basilien-Gainche
Professor inwards Law
University Jean Moulin Lyon III
Member of the Institut Universitaire de France
Introduction
The important of the correct to go heard under the so-called Returns Directive (Directive 2008/115/EC on mutual standards together with procedures inwards Member States for returning illegally staying third-country nationals) was of late nether 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 correct to go heard equally regards the determination to house a third-country national inwards detention (CJEU, 2nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van VeiligheidenJustitie, C-383/13 PPU), the Grand Duchy of Luxembourg Court was asked to clarify how this correct applied to irregular third-country nationals earlier a removal monastic enjoin was adopted against them. The Court did so inwards 2 novel rulings, both next the catch of the Advocate General Melchior Wathelet delivered on 25 June 2014: firstly, the judgment of 5 Nov 2014 inwards Sophie Mukarubega v. Préfet de police, Préfet de la Seine-Saint-Denis (C-166/13; reckon ML Basilien-Gainche& T Racho, ‘Quand le souci d’efficacité de l’éloignement l’emporte sur l’application effective des droits fondamentaux’ (18 Nov 2014) La Revue des droits de l’homme.); together with secondly, on xi Dec 2014, Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, representative (C-249/13).
It must go noticed hither that the French Supreme Administrative Court did non await until the CJEU answered these questions, which the CJEU had been asked past times some French administrative jurisdictions of get-go representative (the Tribunal Administratif de Melun together with the Tribunal Administratif de Pau respectively). Indeed the French Conseild’Etat defined its ain seat on the thing inwards a determination published concluding June (CE four juin 2014, M. A. B., App. No 370515) : the correct to go heard does non require the administrative authorities to give to the third-country national the chance to nowadays his ain observations on the removal monastic enjoin at stake, insofar that he was able to go heard earlier the adoption of the determination 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 correct to go heard, fifty-fifty though the Return Directive does not constitute a specific physical care for for hearing a third-country national earlier the adoption of a homecoming decision. In particular, the CJEU concedes that the Directive does non “specify whether, together with nether what conditions, observance of the correct to go heard of those third-country nationals [is] to go ensured” (decision, Mukarubeaga case, para 41). Why did the Court nevertheless recognise the correct to go heard? Because “the procedural autonomy of the Member States together amongst the absence of a specific physical care for inwards Directive 2008/115 cannot outcome inwards a third‑country national existence deprived of the correct to go heard past times the competent national authorization earlier the adoption of a homecoming decision” (AG opinionWathelet, Boudjila case, para 56), equally far equally the correct to go heard is considered past times the CJEU equally a commutation correct (1).
Anyhow, such a potent consecration of the regulation of this correct is non complemented past times the a potent protection of its implications, deceptively depriving this correct of all its gist (2). This was the seat of the Court inwards its M. G. & N. R. decision, equally it considered the consequences of the violation of the correct to go heard equally regards detention: according to the CJEU, the infringement of this correct equally regards the adoption of a determination to extend the detention menstruum has to go sanctioned, if the outcome of that administrative physical care for would direct hold been dissimilar 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 equally good deceptive because they eat the gist of the correct of go heard: insofar equally the Court does non pay whatever attending to the factual circumstances of the administrative proceedings at stake, it fails give whatever consistency together with thus whatever effectiveness to the correct to go heard, to the bully relief of the French authorities together with for certain equally good of the other Member States.
1 – The legal dry ground of the correct to go heard: a commutation full general principle
According to Advocate General Melchior Wathelet, the legal dry ground of the correct to go heard had to go found inwards the Charter of Fundamental Rights of the European matrimony (CFREU), to a greater extent than just inwards Article 41(2) on ‘Right to practiced administration’, which involves “the correct of every somebody to go heard, earlier whatever private stair out which would deport on him or her adversely is taken”. In his conclusions inwards both cases, the Advocate General asserted the applicability of this provision to the Member States, important that they direct hold to abide by it when adopting decisions falling inside the reach of European Union law (AG opinion, Mukarubega conclusions, para 56). In his view, it would go inconsistent together with incoherent to consider that the wording of Article 41(1) CFREU (“Every somebody has the correct to direct hold his or her affairs handled impartially, fairly together with inside a reasonable fourth dimension past times the institutions together with bodies of the Union”) agency that provision applies only to the European Union institutions together with bodies, together with thus non to Member States fifty-fifty when applying European Union law (ibidem): such an interpretation would deport on the reach of the Charter equally defined inwards its Article 51 (“The provisions of this Charter are addressed to the institutions together with bodies of the Union amongst due regard for the regulation of subsidiarity together with to the Member States only when they are implementing Union law”).
This catch of the Advocate General seems to go inwards conformity amongst the jurisprudence of the Court, especially amongst its determination inwards the M.M.case (CJEU, 22 Nov 2012, C‑277/11; reckon ML Basilien-Gainche, ‘Protection subsidaire: Droit de l’étranger à êtreentendudurantl’instructiond’unedemande de protection subsidiaire’ (24 Nov 2012) La revue des Droits de l’Homme). After explaining that “the correct to practiced direction includes the correct of every somebody to go heard, earlier whatever private stair out which would deport on him or her adversely is taken, the correct of every somebody to direct hold access to his or her file, spell respecting the legitimate interests of confidentiality together with of professional person together with line of piece of work concern secrecy, together with the obligation of the direction to give reasons for its decisions” (para 53), the CJEU asserted really that Article 41(2) of the Charter was of “general application” (para 84). For sure, the wording of this declaration must direct hold been rather uncertain, equally far equally the CJEU did non follow the Advocate General on the inquiry of the legal dry ground of the correct to go heard inwards national proceedings.
But the Court did non follow the catch on this point. Instead it ruled that “it is clear from the wording of Article 41 of the Charter that it is addressed non to the Member States but only to the institutions, bodies, offices together with 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 correct to go heard inwards all proceedings relating to his application” (decision, Mukarubega case, para 44; decision, Boudjlida case, para 32). This does not hateful that the correct to go heard does non apply to the decisions adopted nether Directive 2008/115/EC; it only agency that the legal dry ground of such a correct is non Article 41(2) CRFEU. The Grand Duchy of Luxembourg Court instead insisted that “observance of the rights of the defence forcefulness is a commutation regulation of European Union law, inwards which the correct to go heard inwards all proceedings is inherent” (decision, Mukarubega case, para 42, citing CJEU, Sopropé, C-349/07, M.M., C‑277/11, together with Kamino International Logistics, C-129/13 & C-130/13; determination Boudjlida case, para 30, citing Kamino International Logistics, C-129/13 & C-130/13, together with Mukarubega, C-166/13); together with hence that “such a correct is withal inherent inwards abide by for the rights of the defence, which is a full general regulation of European Union law” (decision, Mukarubega case, para 45; determination Boudjlida case, para 34).
Consequently, the CJEU affirms that the legal dry ground of the correct to go heard which Member States direct hold to abide by during national proceedings, especially those nether Directive 2008/115/EC, has to go found non inwards the Charter of Fundamental Rights (Article 41(2)), but inwards the “fundamental regulation of European Union law” of the rights of the defence. This seems to illustrate 1 to a greater extent than fourth dimension how shy the Court is to affirm the prevalence of the Charter, choosing rulings afterward ruling to base of operations its determination upon the European Union treaties or the principles of European Union law to a greater extent than than upon the Charter. Moreover, fifty-fifty though the aspect appeared earlier (ECJ, 28 March 2000, Dieter Krombach, C-7/98, para42 ; CJEU, 22 Nov 2012, M.M.,C-277/11, para 82 ; CJUE, 3 July 2014, Kamino International Logistics,C-129/13 & C-130/13, para 28), nosotros tin wonder if a hierarchy is appearing amidst the general principles of European Union law, some such principles existence elevating to the status of “fundamental principle”: this should imply some consequences for the guarantee of their abide by together with to the sanction of their infringements, though nosotros create non know of course of instruction how the representative law volition develop inwards futurity on this point. Furthermore, equally far equally the correct to go heard is thus consecrated equally a “fundamental regulation of European Union law”, Member States direct hold to ensure its abide by when they adopt measures which come upward inside the reach of European Union law together with which significantly deport on the interests of the considered addressees (decision, Mukarubega case, para 50; determination Boudjlida case, para 42).
Whereas the Court presents the correct to go heard equally share of the rights of the defence forcefulness which constitute a commutation regulation of European Union law, it does non fully guarantee the consequences of such an assertion regarding the reach of this right. This commutation regulation is exposed deceitfully past times the CJEU amongst a highly restricted extent together with content. As the Advocate General emphasises, “Article 52(1) of the Charter […] allows limitations on the exercise of the rights enshrined inwards the Charter, inwards so far equally the limitation concerned is provided for past times law, respects the essence of the commutation correct inwards inquiry and, dependent patch to the regulation of proportionality, it is necessary together with genuinely meets objectives of full general involvement recognised past times the European Union”, so that “the rights of defence forcefulness create non constitute unfettered prerogatives together with may go restricted inwards sure circumstances” (AG opinion, Mukarubega case, para 53; AG opinion, Boudjlidacase, para 57).
So, although it is fundamental, the regulation of the correct to go heard tin go limited. And inwards these 2 cases nosotros tin reckon how far together with deep such limitations tin go. In monastic enjoin to really empathise the implications of the decisions of the CJEU, together with consequently to really appreciate the weakness (even ineffectiveness) of the correct to go heard for third-country nationals concerning the adoption of removal orders against them, a presentation of the facts of each representative is genuinely useful.
2 – The practical reach of the correct to go heard: a really limited substance
The get-go determination concerns the representative of Sophie Mukarubega, a Rwandan national, who entered French Republic on 10 September 2009 inwards possession of a passport bearing a visa. She lodged an asylum application on four Dec 2009, together with thus held a temporary residence permit during the exam of her claim. By a determination of 21 March 2011, the Office français de protection des réfugiés et apatrides (OFPRA) rejected her application for asylum, afterward hearing her narrative retelling (the implications of a refusal of a residence permit or of an adoption a removal monastic enjoin were thus non at stake). She brought an activity against that determination earlier the Cournationale du droit d’asile (CNDA): this was heard on 17 July 2012, but was dismissed past times a determination adopted on thirty August 2012 together with notified on 10 September 2012. On twenty September 2012, she presented herself to the aliens service of the Préfecture de Police de Paris, inwards monastic enjoin to convey the proof of her work for 24 months together with to apply for an admission for particular together with humanitarian reasons; but she faced what French immigration law specialists telephone phone a “refusguichet”, equally the administrative authorities did non allow her access the role to nowadays her application. It must go emphasized that these facts are non mentioned either inwards the catch of the Advocate General or inwards the determination of the Court, though they are presented inwards the observations submitted on behalf of Sophie Mukarubega past times her lawyer Bruno Vinay, together with though they are of principal importance to appreciate the existent (in)effectiveness of the correct to go heard inwards this case.
Yet, on the dry ground of the rejection of her asylum application, the Préfet de Police de Parison 26 October 2012 issued a refusal of residence permit together with an obligation to leave of absence the French territory against Sophie Mukarubega. However, she remained inwards the French territory, together with tried to move to Canada, using a fraudulently obtained Belgian passport on four March 2013. She was together with then arrested together with detained inwards custody, so the Préfet de Seine-Saint-Denis adopted on v March 2013 a removal monastic enjoin without a menstruum for voluntary divergence because of the chance of absconding. She was thus placed inwards a detention centre.
Next, she was heard past times the OFPRA (the appointment is non indicated), together with past times the CNDA (on 17 July 2012), but only on the grounds for existence granted an international protection status: these hearings did non bargain amongst the questions of the importance of a residence permit or the consequences of a removal order. Strangely, the CJEU does non select into line of piece of work concern human relationship such a principal procedural element, whereas “procedural decisions are oft the only vehicle for taking noun rights seriously” (Hiroshi Motomura, ‘The curious development of immigration law : procedural surrogates for noun constitutional rights’ (November 1992) Columbia Law Review 1656). Afterwards, she was heard – interrogated would go really a to a greater extent than suitable give-and-take – during her custody: weirdly, the Court does assert that such “police interrogation”, equally the Advocate General described it inwards his catch (para 31), tin go considered equally an hearing, though the questions asked concerned the work of fraudulent documents together with non the alter inwards her province of affairs registered since she applied for asylum iii years before.It must go emphasized how puzzling the seat 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 together with asylum system, when suggesting that she was heard most her stay, equally far equally this number was non discussed either at her hearings at the OFPRA together with the CNDA, or at her police line interrogation at the airport.
Furthermore, the CJEU does non pay whatever attending to the fact that a menstruum of thirty months passed betwixt the get-go together with the 2d removal orders, during which some substantial changes occurred that modified the way Sophie Mukarubegas province of affairs could direct hold been appreciated past times the national authorities. Only the Advocate General considers that element, but inwards a quite strange manner: he concludes that “It is for the referring courtroom to verify whether the alter since the filing of her application for asylum inwards her personal circumstances, alleged inwards that 2d representative past times Ms Mukarubega, constitutes a argue for rendering her province of affairs legal nether Article L.313-14 of the CESEDA”, earlier adding that “the referring courtroom must ensure that the application inwards inquiry was filed inwards practiced religious belief together with does non only constitute a delaying tactic past times Ms Mukarubega amongst the sole intention of delaying or fifty-fifty jeopardising the physical care for earlier the national authorities together with the possible adoption of a homecoming 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 whatever time, nowadays himself at the prefecture inwards monastic enjoin to go heard at that spot 1 time to a greater extent than for the work of submitting novel bear witness amongst a catch to rendering his province of affairs 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 go apprehended together with returned without his changed province of affairs fifty-fifty existence considered?
The Courts seat is both clear together with upsetting: equally regards “the obligation to listen her specifically on the dependent patch of the homecoming determination earlier the adoption of that decision...a national authorization is non precluded from failing to listen a third-country national specifically on the dependent patch of a homecoming determination where, afterward that authorization has determined that the third-country national is staying illegally inwards 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 somebody concerned” (decision, Mukarubega case, para 70). Meanwhile “the obligation of the Member States to scrap illegal immigration must go maintained” (decision, Mukarubega case, para 71). From this perspective, the Court tin affirm that “the adoption of a homecoming determination is the necessary outcome of a determination determining that the somebody concerned is staying illegally” (decision, Mukarubega case, para 59), fifty-fifty though this assertion implies a lack of distinction betwixt the dissimilar administrative decisions (the 1 on the asylum application, the 1 on the residence permit, the 1 on the removal order). It considers these to cast share of the same administrative procedure, which is greatly questionable.
3 – The rattling sparse gist of the correct to go heard
While the Mukarubega representative (C-166/13) reveals how limited the extent of the correct to go heard is according to the Grand Duchy of Luxembourg Court, the Boudjlida case(C-249/13) exposes the Courts restricted catch of the content of this right. Khaled Boudjlida, an Algerian national, entered French Republic on 26 September 2007 inwards monastic enjoin to pursue higher education. As he held a ‘student’ residence permit that he renewed on an annual basis, his remain inwards French Republic was lawful until 31 October 2012. Since he did non apply for a renewal of his concluding residence permit, he became together with then an irregular third-country national. On 7 January 2013, he applied to register himself equally a self-employed human of affairs inwards monastic enjoin to constitute a micro-business inwards the patch of engineering.
While he was attending an appointment amongst the relevant authorities, he was asked on 15 January 2013 past times the edge police line to come upward to their role to go questioned on the lawfulness of his stay. He voluntarily complied amongst that invitation: he was interviewed past times the police line on his circumstances amongst regard to his correct of residence inwards France. The same day, the Préfet des Pyrénées-Atlantiques issued a determination imposing on him the obligation to leave of absence the French territory, granting him a menstruum of thirty days for his voluntary homecoming to Algeria. He introduced a remedy against this decision, claiming for its annulment earlier the Tribunal administratif de Pau. He claimed he was non inwards a seat to analyse all the data relied on against him, since the French authorities did non discover that data to him beforehand, did non allow him an adequate menstruum for reflection earlier the hearing, did non offering him the create goodness of a legal assistance, together with only spent some thirty minutes interviewing him.
By deciding to remain the proceedings together with to refer to the CJEUfor a preliminary ruling, the Tribunal administratif de Pau offered the chance to clarify the exact content of the correct to go heard. Indeed, the French get-go representative administrative jurisdiction asked the Grand Duchy of Luxembourg Court if such a correct includes, for the third-country national inwards abide by of whom a determination falls to go taken equally to whether he is to go returned, “the correct to go seat inwards a seat to analyse all the data relied on against him equally regards his correct of residence, to limited his dot of view, inwards writing or orally, amongst a sufficient menstruum of reflection, together with to savour the assistance of counsel of his ain choosing”. To this question, the Advocate General proposed answers that seem to deprive this correct of whatever substance. Actually, he does non consider thatthe correct to go heard tin “be interpreted equally important that the competent national authorization is obliged, before, issuing a homecoming decision, to provide the somebody concerned amongst the bear witness on which it intends to base of operations that determination together with to seek that person’s observations inwards that regard afterward a menstruum of reflection” (AG opinion, Boudjlida case, para 67); “that the length of the interview is a decisive factor” (AG opinion, Boudjlida case, para 76); together with that Member States are “required to deport the costs of that assistance past times providing costless legal aid” (AG opinion, Boudjlida case, para 76).
Let us brand hither 1 remark most the length of the interview. Does anyone really hollo upward that thirty minutes inwards the representative of Khaled Boudjlida together with xl minutes inwards the representative of Sophie Mukarubega is plenty fourth dimension to assess the complexities of the province of affairs of such third-country nationals? Can anyone select that such interviews select house without a lawyer /counsellor together with an interpreter?
Yet the Court follows the catch of its Advocate General so much so nosotros tin wonder what the exact content of the correct to go heard really is. This correct does non include the correct to prior notification of the authority’s declaration (“it does non require a competent national authorization to warn the third-country national, prior to the interview arranged amongst a catch to that adoption, that it is contemplating adopting a homecoming determination amongst abide by to him, or to discover to him the data on which it intends to rely equally justification for that decision”, decision, Boudjlida case, para 69); the correct to create goodness from a menstruum of reflection (“it does non require a competent national authorization […] to allow him [the third-country national] a menstruum of reflection earlier seeking his observations”, decision, Boudjlida case, para 69); the correct to go provided amongst costless legal assistance (“it does non require Member States to deport the costs of that assistance past times providing costless legal aid”, decision, Boudjlida case, para 71, equally far equally ““an illegally staying third-country national may direct hold recourse, prior to the adoption past times the competent national authorization of a homecoming determination concerning him, to a legal adviser inwards monastic enjoin to direct hold the create goodness of the latter’s assistance when he is heard past times that authority”, decision, Boudjlida case, para 70).
First, nosotros patently direct hold to go worried past times the limitation the CJEU affirmed concerning the correct to create goodness from a legal assistance: its declaration according to which the exercise of such a correct must “not deport on the due progress of the homecoming procedure” together with “not undermine the effective implementation of Directive 2008/115” (decision, Boudjlida case, para 70) mightiness Pb a national authorization to reject whatever legal assistance to an illegally staying third-country national, since such assistance would patently aim to forestall the implementation of the removal orders. Second, to a greater extent than generally, the correct to go heard appears to go a purely formal correct without whatever noun content. It is incredible that the Court asserts that at that spot is a presumption that “the third-country national has the chance effectively to nowadays his dot of catch on the dependent patch of the illegality of his remain together with the reasons which might, nether national law, justify that authorization refraining from adopting a homecoming decision” (decision, Boudjlida case, para 69).How tin the CJEU assert such an assumption? We direct hold to inquire the Court: when together with where did these illegally staying third-country nationals direct hold an effective chance to create this? ?
Conclusion
In these recent rulings, the CJEU restricts the extent together with the content of the correct to go heard for third-country nationals facing removal orders, so much so that this supposedly commutation correct appears to go nonexistent. The Court claims that such limitations upon the correct check to “objectives of full general involvement pursued by” Directive 2008/115/EC together with “do non involve, amongst regard to the objectives pursued, a disproportionate together with intolerable interference which infringes upon the rattling gist of the rights guaranteed”(decision, Mukarubega case, para 53). How tin nosotros concur that restraining the reach of the correct to go heard for irregular migrants pursues the objective of full general involvement of the contend against illegal migration, together with is proportionate to the imperatives of achievement of such an objective? How pathetic for the Court to consecrate the contend against illegal migration! How dreadful for the Court to validate inwards this way the ‘legal stuff of illegality” (N de Genova, ‘The Legal Production of Mexican/Migrant Illegality’ (1996) 2/2Latino Studies 160-185; N de Genova, B Neilson & westward Walters, ‘Foucault, Migrations, Borders’ (2011) 2/3MaterialiFoucaultiani149-213). Definitely, the political evil is found inwards the procedural details.
