Sophie Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 05 November 2014

JUDGMENT OF THE COURT (Fifth Chamber)

5 November 2014 ( *1 )

‛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 — Procedure for the adoption of a return decision — 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 her interests — Administrative authority refusing to grant such a national a resident permit as an asylum applicant and imposing an obligation to leave the territory — Right to be heard before the return decision is issued’

In Case C‑166/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal administratif de Melun (France), made by decision of 8 March 2013, received at the Court on 3 April 2013, in the proceedings

Sophie Mukarubega

v

Préfet de police,

Préfet de la Seine-Saint-Denis,

THE COURT (Fifth Chamber),

composed of T. von Danwitz, President of the Chamber, A. Rosas (Rapporteur), E. Juhász, D. Šváby and C. Vajda, Judges,

Advocate General: M. Wathelet,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 8 May 2014,

after considering the observations submitted on behalf of:

— Ms Mukarubega, by B. Vinay, avocat,

— the French Government, by G. de Bergues, D. Colas, F.-X. Bréchot and B. Beaupère-Manokha, acting as Agents,

— the Greek Government, by M. Michelogiannaki and L. Kotroni, acting as Agents,

— the Netherlands Government, by J. Langer and M. Bulterman, acting as Agents,

— the European Commission, by M. Condou-Durande and D. Maidani, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 June 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6 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 (OJ 2008 L 348, p. 98), and the right to be heard in all proceedings.

2 The request has been made in proceedings between Ms Mukarubega, a Rwandan national, and the Préfet de police (Police Commissioner) and Préfet de la Seine‑Saint-Denis (Prefect of Seine-Saint-Denis), concerning decisions rejecting her application for a residence permit as a refugee and imposing on her the obligation to leave France.

Legal context

European Union law

3 Recitals 4, 6 and 24 in the preamble to Directive 2008/115 are worded as follows: ‘(4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy. … (6) Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. … … (24) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union [“the Charter”].’

4 Article 1 of that directive, which is headed ‘Subject matter’, provides: ‘This directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’

5 Article 2(1) of the directive provides: ‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’

6 Article 3 of Directive 2008/115, headed ‘Definitions’, provides: ‘For the purpose of this Directive the following definitions shall apply: … (2) “illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions … for entry, stay or residence in that Member State; … (4) “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return; (5) “removal” means the enforcement of the obligation to return, namely the physical transportation out of the Member State; … (7) “risk of absconding” means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third‑country national who is the subject of return procedures may abscond; …’

7 Article 6 of the directive, headed ‘Return decision’ provides: ‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. … 4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay. … 6. This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law.’

8 Article 7 of the directive, which is headed ‘Voluntary departure’, provides: ‘1. A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. … … 4. If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.’

9 The first subparagraph of Article 12(1) of Directive 2008/115, that article being headed ‘Form’ provides: ‘Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.’

10 Article 13 of the directive, headed ‘Remedies’, provides in paragraphs 1 and 3: ‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. … 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.’

French law

11 Under Article L. 511-1 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Stay of Foreign Nationals and the Right of Asylum), as amended by Law No 2011-672 of 16 June 2011, on immigration, integration and nationality (JORF of 17 June 2011, p. 10290; ‘Ceseda’): ‘I. An administrative authority may oblige a foreign national who is not a national of a Member State of the European Union … and who is not a family member of such a national within the meaning of Article L. 121-1, 4° and 5°, to leave French territory, when that person falls within one of the following situations: … 3° if the foreign national was refused the issue or renewal of a residence permit, or if the residence permit which was issued to him was withdrawn; … 5° if the acknowledgment of an application for a residence card or the temporary residence permit which was issued to the foreign national was withdrawn or if the renewal of those documents was refused. The decision stating the obligation to leave French territory shall contain a statement of reasons. The reasons stated in that decision need not be distinct from those in the decision on the stay in the situations provided for in 3° and 5° above, without prejudice, where appropriate, to the indication of reasons for the application of Sections II and III. The obligation to leave French territory shall fix the country to which the foreign national is to be returned in the event of enforcement. II. A foreign national must comply with the obligation imposed on him to leave French territory within 30 days from the date of its notification and may request, for that purpose, assistance to return to his country of origin. Having regard to the foreign national’s personal circumstances, an administrative authority may exceptionally grant a period for...