Case Law

The Case Law database provides access to the case-law of the European Court of Human Rights (Grand Chamber, Chamber and Committee judgments, decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports), the Committee of Ministers (resolutions), and the Court of Justice of the European Union.


CASE DATE:
Thursday, 11 Dec 2014
STATE:
France
OUTCOME:
"...the Court (Fifth Chamber) hereby rules: "The right to be heard in all proceedings, as it applies in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, and, in particular, Article 6 of that directive, must be interpreted as extending to the right of an illegally staying third-country national to express, before the adoption of a return decision concerning him, his point of view on the legality of his stay, on the possible application of Articles 5 and 6(2) to (5) of that directive and on the detailed arrangements for his return. "However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that 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, or to allow him a period of reflection before seeking his observations, provided 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. "The right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that 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, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of Directive 2008/115. "However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require Member States to bear the costs of that assistance by providing free legal aid."
  • SUBJECT MATTER:

    Reference for a preliminary ruling — Visas, asylum, immigration and other policies related to free movement of persons — Directive 2008/115/EC — Return of illegally staying third-country nationals — Principle of respect for the rights of the defence — Right of an illegally staying third-country national to be heard before the adoption of a decision liable to affect his interests — Return decision — Right to be heard before the return decision is issued — Extent of that right


    DETAIL:

    ...the tribunal administratif de Pau decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: 1. a) What is the extent of the right to be heard laid down by Article 41 of [the Charter] for an illegally staying third-country national in respect of whom a decision falls to be taken as to whether or not he is to be returned? b) In particular, does that right include the right [for that foreign national] 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? 2. If necessary, must the extent of that right be adjusted or limited in view of the general interest objective of the return policy set out in Directive [2008/115]? 3. If so, what adjustments or limitations must be made, and on the basis of what criteria should they be established?


    COURT:
    ECJ
    ARTICLE:
    Article 6 of Directive 2008/115/EC (Returns Directive)

JUSTICIA European Rights Network