France / Administrative Court of Appeal, Lyon / 12LY02929 Prefect of Rhône v Mrs A

Key facts of the case:

Policy area concerned –law concerning foreign nationals Facts of the case: The Prefect contests the annulment of his decision imposing an obligation to leave the French territory by the first instance administrative court. The Prefect issued an obligation to leave the French territory pleading that Mrs A abused her right of residence in France for a period of up to three months, multiplying such stays without meeting conditions for the right of residence for a period of longer than three months, and enjoying social, medical and emergency housing assistance (article L. 511-3-1 of Code of Entry and Residence of Aliens and the Right to Asylum). Legal questions raised: the definition of the abuse of the right of residence. Can the right of residence be justified by the right to family life (husband having Romanian nationality and working in France but without any right of residence) or/and by the best interest of the child (going to school in France)? What are the procedural guarantees provided to a person forced to leave the French territory?

Paragraphs referring to EU Charter: 


Considering that when forcing a Community national to leave the French territory on the basis of article L. 511-3-1 of the Code of Entry and Residence of Aliens and the Right to Asylum, transposing the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 into national law, a prefect must be regarded as implementing the law of the European Union. Thus, its general principles, including the right to good administration, must be applied as guaranteed by article 41 of the Charter - right of every person to be heard - before the adoption of any individual measure which would affect him or her unfavourably. According to the jurisprudence of the Court of Justice of the European Union, this right is defined as the right to submit written or verbal comments during an administrative proceeding before the adoption of any decision which would have a negative effect. This right does not automatically imply an obligation for the administration to organize on its own initiative an interview with this person, nor invite the latter to produce observations. But if this person is informed that a negative decision may be taken against her/him, she/he must be able to spontaneously present her/his written comments or request a meeting to present her/his comments verbally. The violation of this right can affect the regularity of the proceedings leading to the unfavourable decision only if this person was deprived of the opportunity to provide relevant information that could affect the decision. But Mrs A was heard by police six days before the prefect’s order and, thus, had the opportunity to share any relevant information concerning the recognition of her right to residence in France as well as arguments against measures requiring her to leave the country. Thus, she was not denied the right to be heard that is the general principle of the European Union law. Under article 24 of the Charter of Fundamental Rights of the European Union, '1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests'. Whereas if Mrs. A. is staying in France with her husband and one of their two children, born in 2005, is going to school, there is no obstacle for this child to accompany his parents in Romania. They are all nationals of Romania. In this country he can be with his nine year old brother. It was not established that he will not be able to continue his education in Romania. Thus, the prefect of the Rhône did not breach the best interests of the child guaranteed by article 3 § 1 of the Convention on the Rights of the Child and article 24 of the Charter of Fundamental rights of the European Union.

Deciding body (original language): 
Cour administrative d’appel de Lyon