Brussels, 25/06/2014 (Agence Europe) - Do third-country nationals whose illegal situation of residence in a member state comes to light have to be heard by the competent authorities before any decision is made against them to leave the territory? What are the elements, timescales and details to be applied? If the person in question brings a lawyer to the hearing, must the member state pay for this assistance under free legal aid? If he or she brings an appeal with suspensive effect, can this release the administration from having to hear the individual before any decision is made on a return?
In his conclusions, returned on Wednesday 25 June on two separate but similar cases (cases C-249/13 and C-166/13), Advocate General Melchior Wathelet states that, when a situation of illegal residence comes to light, and the person in question is aware of the reasons for it (in these cases, a non-renewal and a rejection of a residence permit), the competent authority must make a return decision against them. However, it must first of all hear the person about the legality of the residence, the possibility of applying exceptions provided for by the law and the details of his or her return. However, as there are no provisions to this end in EU law, it is not obliged to notify the person of the elements on which it intends to base its order to leave the territory, or to collect any observations the individual may have on the subject, while allowing reflection time before the hearing.
The Advocate General states that in this regard, as long as the individual has been validly heard on the three above-mentioned points when applying for the residence permit in the first place, the national authority is not obliged to hear them again before adopting its return decision, because this obligation would be redundant. Furthermore, it would open up the possibility to prolonging the procedure indefinitely.
And, if the person in question brings an appeal before the court against the administrative decisions refusing the residence permit and ordering him or her to leave the territory on the basis of another residence application brought in the meantime (if the situation of the individual has changed), the suspensive nature of this appeal does not release the authorities from hearing the person on the situation before taking any decision to remove them from the country. Indeed, said Wathelet, an appeal of this kind is separate from the administrative procedure.
As regards bearing the costs for any legal assistance, the Advocate General states that, at the hearing, the individual can always use legal advice, as long as this does not affect the correct unfolding of the procedure, but this must be done at their own cost, without the ability to claim for the costs to be reimbursed by the state under free legal aid. (FG)