Case C‑249/13

Khaled Boudjlida

v

Préfet des Pyrénées-Atlantiques

(Request for a preliminary ruling from the
tribunal administratif de Pau)

(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)

Summary — Judgment of the Court (Fifth Chamber), 11 December 2014

1.        Fundamental rights — Charter of Fundamental Rights of the European Union — Right to good administration — Right to be heard — Right not enforceable against Member States

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

2.        Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — National subject to a return procedure under Directive 2008/115 — Right to be heard before adoption of return decision — Scope — Limits

(European Parliament and Council Directive 2008/115, Arts 5 and 6)

1.        See the text of the judgment.

(see paras 30-33)

2.        The right to be heard in all proceedings, as it applies in the context of Directive 2008/115 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.

(see paras 68-71, operative part)