CJEU - C 166/13 / Opinion Mukarubega

Key facts of the case:
 
(Request for a preliminary ruling from the Tribunal administratif de Melun (France))
 
(Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Procedure for adopting a return decision — Principle of respect for the rights of defence — Authorities refusing to issue to an illegally staying third-country national a residence permit as an applicant for asylum, and imposing an obligation to leave French territory — Right to be heard before the issuing of a return decision — Risk of absconding — Effect of the existence of an action with suspensive effect in national law enabling the foreign national to be heard after the event)
 
Results (sanctions) and key consequences of the case:
 
99. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions referred for a preliminary ruling by the Tribunal administratif de Melun: 
  1. Where a national authority has determined the illegality of the stay of a third-country national following a decision refusing him asylum upon the conclusion of a procedure which fully respected his right to be heard as laid down by the general principles of EU law and established by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, EU law does not require that authority to hear that person again before issuing a return decision against him. The fact that a national authority has respected the right of a person concerned to be heard, as required by the general principles of EU law laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, in a particular case (for example, an application for asylum) does not exempt it from hearing that person again in the context of a procedure initiated on a different legal basis (for example, an application for legalisation of residence for humanitarian reasons), even if the aim of the two applications is substantially the same (in this case, recognition that a stay is legal).
  2. Where the limitations allowed by Article 52(1) of the Charter of Fundamental Rights of the European Union are not applicable, the right of an illegally staying third-country national to bring proceedings with suspensive effect before a national court does not exempt the national administrative authorities from hearing that person again before issuing a return decision against him.
Paragraphs referring to EU Charter: 

 

51 – 67, 95-96