Key facts of the case:
The Prefect of Meurthe-et-Moselle, through the Order of 20 November 2012, refused to grant Mr A., a national from the Democratic Republic of Congo, permission to stay, and ordered him to leave the French territory within thirty days and fixed the Democratic Republic of Congo as the country to which he could be automatically removed upon the expiry of this time limit. In March 2013, the administrative court of Nancy refused the application of Mr A. to cancel the Order of November 2012. In December 2013, the Nancy administrative court of appeal rejected the appeal made by Mr A. against the ruling of the administrative court of Nancy.
Outcome of the case:
The appeal by Mr A. was rejected by the State Council which concluded that the applicant was not deprived of his right to be heard.
The State Council rejected the appeal by Mr A. by dismissing the pleas made:
- when the Prefect receives a request to issue a residence permit on the basis of the one of the provisions of the Code of entry and stay of foreigners and the right of asylum, the Prefect is not automatically required, in the absence of express provisions concerning this, to examine if the interested party may claim authorization to stay on the basis of a different provision of this code, even if it is still permissible for the Prefect to do so on a purely discretionary basis. A foreigner cannot usefully make a plea based on a misreading of Article L. 313-14 of the Code of the entry and stay of foreigners and the right of asylum (private and family life residence permit) against a refusal to a request for a residence permit which was not presented on the basis of this article;
- in the case provided for by 3-1 of article L. 511-1 of the Code of the entry and stay of foreigners and the right of asylum, where the decision requiring the applicant to leave the French territory is made concomitantly with the refusal to issue a residence permit, the obligation to leave the French territory necessarily arises from the refusal of a residence permit. Thus, the right to be heard recognized by the Charter of fundamental rights does not imply that the Administration is obliged to require the interested party to make representations in any specific way on the decision obliging them to leave the French territory, since they could be heard before the decision is made to refuse to issue a residence permit. The simple fact that the applicant had not been invited to make representations before the decision to require him to leave the territory was not of such a nature as to lead to regarding him as having been deprived of his right to be heard.
Considering: The Charter of Fundamental Rights of the European Union; The Code for the entry and stay of foreigners and asylum; Law No. 91-647 of 10 July 1991; Law No. 2011-672 of 16 June, 2011; and The Code of administrative justice.
5. Considering, secondly, that under paragraph 1 of Article 41 of the Charter of Fundamental Rights of the European Union: ‘Everyone has the right for his or her affairs to be handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’; that paragraph 2 of the same article: ‘This right includes: the right of every person to be heard before any individual measure which could adversely affect them is taken against him’; that under paragraph 1 of Article 51 of the Charter: ‘The provisions of this Charter are addressed to the institutions, bodies and agencies of the Union while respecting the principle of subsidiarity and to the Member States only when they are implementing Union law.
7. Considering that [...] the right of the person concerned to be heard, thus satisfied before the refusal of a residence permit, does not require the administrative authority to ask the person to reiterate their representations or to present new information, specifically on the removal decision to leave the French territory which is taken concurrently and as a consequence of being refused a residence permit. Judging that the simple fact that the applicant had not been invited to make representations before the decision to require him to leave the territory was not of such a nature as to lead to regarding him as having been deprived of his right to be heard as set out in paragraph 2 of Article 41 of the Charter of Fundamental Rights of the European Union, the Administrative Court of Appeal has not committed an error of law.