Key facts of the case:
(Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Procedure for issuing a return decision — Principle of respect for the rights of defence — Right to be heard before the adoption of a decision likely to affect the interests of an illegally staying third-country national — Extent of the rights of defence and of the right to be heard — Right to be able to express a point of view with a sufficient period of reflection — Right to enjoy the assistance of counsel — Limitations on the right to be heard)
Results (sanctions) and key consequences of the case:
82. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunal administratif de Pau as follows:
- The right of an illegally staying third-country national to be heard before a return decision is issued to him requires the competent national authority to hear the person concerned on the legality of his stay, the possible application of Article 5 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 and the exceptions provided for in Article 6(2) to (5) of that directive, and on the procedure for his return.
- On the other hand, except where the third-country national could not reasonably suspect that a return decision might be issued or what evidence might be relied on against him, which would require him to take certain steps for the purpose of verification or to obtain supporting documents, EU law does not require the competent national authority to inform that person before the hearing organised with a view to issuing that decision that it intends to issue a return decision or to supply him with the evidence on which it intends to base that decision or to allow him a period of reflection before seeking his observations.
- Although, before the adoption by the competent national administrative authority of a return decision, the third-country national can have recourse to legal counsel during his hearing by the competent national authorities, provided that the exercise of that right does not affect the proper conduct of the proceedings and does not undermine the effective implementation of Directive 2008/115, EU law does not require Member States to bear the cost of that assistance in the form of free legal aid.
- There is no need to adjust or otherwise limit the content of the right to be heard in view of the general interest objective set out in Directive 2008/115.