Brussels, 12/12/2014 (Agence Europe) - Before adopting a return decision against illegally staying third-country nationals, the national authorities must hear the persons in question to allow them to give their opinions on the legality of their stay or the terms of their return, for instance. However, they are not obliged to warn them that they will be making a note of their observations, or that they are planning a return decision against them.
Although the directive (2008/115) lays down common standards and procedures applicable in the member states for the return of illegally staying third-country nationals, it makes no stipulations as to the conditions which must be brought about to respect their right to be heard before any return decision is made against them. The Court of Justice of the EU has now closed this procedural uncertainty by means of a verdict (case C-249/13) which it returned on Thursday 11 December.
The European judges have proposed to strike a balance between defence rights (general principle of EU law) and its most recent case-law (EUROPE 11191), which establishes that a return decision must be made against a third-country national as soon as it is noted that that individual is staying in the country illegally, without necessarily holding a further hearing.
This means that in this context, the right of a national to be heard before any return decision is adopted aims to allow him or her to take position on the legality of his or her stay and the details of his or her return, whilst providing the national authorities with the opportunity to verify whether or not exemptions to the application of the return decision apply (right of residency in another member state, best interests of a child, etc.).
However, the Court stresses, this is not an adversarial procedure. This means that the national authorities are not obliged to inform the interested party that they are preparing to make a decision about a return, or to warn the individual that he or she is to be questioned. There is one exception to this rule: when the individual cannot reasonably suspect what evidence might be relied upon against him or her or would not objectively be able to respond to it unless certain supporting documents could be obtained.
Lastly, although legal assistance is not provided for by the directive, the third-country national can, on his or her own costs, use a lawyer, as long as the exercise of this right does not affect the due process of the return procedure and does not undermine the effective implementation of the directive. The Court took pains to stress that return decisions can in all cases be appealed against. (JK)