Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III

Member of the Institut Universitaire de France

Introduction

This paper examines two recent rulings from the Court of Justice of the European Union (CJEU) concerning the right to be heard for individuals facing removal orders under the Returns Directive. These rulings raise concerns about the practical application of this right. While the CJEU has previously interpreted the right to be heard in detention cases, these new rulings clarify how it applies to undocumented immigrants facing removal.

Notably, the French Supreme Administrative Court issued its own interpretation, asserting that a separate hearing for a removal order is unnecessary if the individual was heard during the residence permit refusal process. However, the CJEU emphasizes the importance of the right to be heard, even though the Returns Directive lacks a specific procedure for it. The CJEU argues that the absence of a specific procedure doesn’t negate this right, as it is considered fundamental.

However, the court’s strong stance on the principle of the right to be heard isn’t matched by equally strong protections for its application, rendering the right practically meaningless. This paper critiques the court’s stance, which prioritizes the efficiency of removals over the effective application of fundamental rights. It argues that the CJEU’s judgments, lacking consideration for the realities of administrative processes, render the right to be heard ineffective.

1 – The Legal Foundation of the Right to be Heard: A Fundamental General Principle

Advocate General Melchior Wathelet argues that the Charter of Fundamental Rights of the European Union (CFREU), specifically Article 41(2), provides the legal basis for the right to be heard. This article emphasizes the “right to good administration,” encompassing the right to be heard before any measure negatively affecting an individual is taken. The Advocate General asserts the applicability of this provision to Member States, requiring them to uphold it when making decisions under EU law.

However, the CJEU diverges from this opinion, ruling that Article 41 of the Charter addresses only EU institutions and bodies, not Member States, even when applying EU law. This doesn’t mean the right to be heard is inapplicable under Directive 2008/115/EC; it signifies that its legal basis isn’t Article 41(2) CFREU. Instead, the CJEU insists that respecting the right to be heard is a fundamental principle of EU law, inherent in upholding the right to a defense.

Therefore, the CJEU establishes that the legal basis for the right to be heard, which Member States must uphold, originates from the “fundamental principle of EU law” of the rights of defense, not the Charter of Fundamental Rights. This highlights the Court’s hesitancy in affirming the Charter’s prevalence, frequently relying on EU treaties or principles instead.

This raises questions about the emergence of a hierarchy within the general principles of EU law, potentially elevating some to “fundamental principles.” This could have consequences for ensuring their respect and sanctioning violations, although future case law will determine this. As the right to be heard is deemed a “fundamental principle of EU law,” Member States must ensure its respect when enacting EU law-related measures that significantly impact those involved.

Despite presenting the right to be heard as integral to the fundamental principle of the right to a defense, the CJEU doesn’t fully guarantee the consequences of this assertion. The court acknowledges that even fundamental principles like the right to be heard can be limited under specific circumstances, as outlined in Article 52(1) of the Charter. The following two cases demonstrate the extent and depth of such limitations, revealing the weakness and ineffectiveness of the right to be heard for undocumented immigrants facing removal orders, a situation favorable to the French government and likely other Member States as well.

2 – The Practical Scope of the Right to be Heard: A Severely Limited Substance

The first case involves Sophie Mukarubega, a Rwandan national whose asylum application in France was rejected. She was subsequently issued a removal order. The CJEU, however, overlooks crucial procedural details, such as the fact that Mukarubega was never given a proper hearing on the implications of a residence permit refusal or a removal order. Her interactions with authorities focused solely on her asylum application, not her overall immigration status.

The CJEU’s assertion that Mukarubega was “able effectively to submit her observations on the illegality of her stay” demonstrates a misunderstanding of the French immigration system. The court fails to acknowledge that a significant period elapsed between her initial arrival and the removal order, during which her circumstances could have changed. It disregards the argument that these changes should be considered.

The court prioritizes the efficiency of the removal process over a fair hearing. It disregards the possibility of significant changes in an individual’s circumstances and reduces the administrative process to a mere formality, undermining the very essence of the right to be heard.

3 – The Extremely Narrow Substance of the Right to be Heard

The case of Khaled Boudjlida, an Algerian national facing removal from France, highlights the CJEU’s limited interpretation of the content of the right to be heard. Boudjlida argued that he wasn’t given adequate time or resources to understand and respond to the allegations against him. He was denied access to information, sufficient time for reflection, and legal assistance.

The Advocate General, however, argued against these points, stating that the right to be heard shouldn’t be interpreted as requiring authorities to provide detailed evidence or ample time for preparation. This stance was echoed by the CJEU, raising serious concerns about the practical value of the right to be heard.

The CJEU’s ruling that the right to legal assistance should not impede the removal process is particularly troubling. This condition effectively undermines the purpose of legal assistance, which is to protect the rights of the individual. The court’s decision essentially reduces the right to be heard to a formality devoid of meaningful substance. It disregards the importance of legal assistance and fails to acknowledge the power imbalance between individuals facing removal and the authorities.

Conclusion

The CJEU’s recent rulings significantly limit the right to be heard for individuals facing removal orders. The court prioritizes the fight against illegal migration over fundamental rights, accepting limited interpretations of the right to be heard and its practical implications. This approach undermines the essence of a fair and just legal process, effectively rendering the right to be heard meaningless. The rulings raise concerns about the CJEU’s commitment to upholding fundamental rights within the EU’s immigration system. The lack of a robust and meaningful right to be heard raises significant questions about the fairness and justice of the EU’s approach to immigration.