Challenges in the legal and judicial implementation of the Return Directive in Belgium – the Right to be Heard : Real or Formal?

Sarah Janssens
Lawyer at the Brussels bar association

This presentation gives an overview of the national impact of the European case-law concerning the right to be heard.

This concept was defined by the Court of Justice as the right that “guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely”1.

The right to be heard has become a topical issue, but this has not always been the case. So, what is the background?

My colleague, Pierre Robert, and I published an article of legal literature on the right to be heard in asylum and immigration law at the end of 20132
after the first two important rulings from the Court of Justice in this regard: the case M.M. v Ireland of 22 November 2012 and M.G. and N.R. v the Netherlands of 10 September 2013.

When our article was published at the end of 2013, there were very few cases on the right to be heard in Belgium. We found a little over 20 cases for the entire year 2013, most of them rejecting the claim of an alleged infringement of the applicant’s right to be heard. It was clear that the judges were not used to handling such claims, and their answers were often far-fetched.

For example:

  • Regarding Article 41 of the EU Charter of Fundamental Rights (the right to good administration), some Belgian judges said that this legal provision was not applicable because the applicant was not a Citizen of the European Union3;
  • Some other judges decided that the right to be heard was sufficiently respected if the applicant or his/her lawyer had been heard by the court (conflating Article 41 and Article 47 of the Charter)4;

For the sake of completeness, I should mention that, as in other European countries, the Belgian jurisdictions active in asylum and immigration law are administrative tribunals, with the important exception of the detention, which is subject to review by judicial courts. The fact that we deal mainly with administrative tribunals, controlling the legality of the decisions, means that their case-law very much depends on the legal grounds put forward by the lawyers. The tribunals cannot, except for when dealing with claims based on public policy, go beyond the claim as formulated by the applicant. If it can be said that the case-law was not completely accurate in 2013, this was also due to the fact that the lawyers were not particularly skilled in invoking violations of the right to be heard.

Since 2013, the European Court of Justice has clarified the scope of the right to be heard through its judgments in the cases of MUKARUBEGA of 5 November 2014, BOUDJLIDA of 11 December 2014, and, last but not least, the BENALLAL case of 17 March 2016, following a request for a preliminary ruling by the Belgian Conseil d’état (the supreme administrative court of Belgium).

Following these developments, which direction is Belgium heading now?

You can imagine that our analysis of 2013 belongs to a context that now lies in the past. The train of the right to be heard is now on the right track. And who has boarded this train?

    1. The lawyers. Most of the applications today concerning the EU Return Directive allege the violation of the right to be heard.In administrative tribunals, the claim alleging infringement of the right to be heard is also often used to develop new elements and communicate new documents – which would be impossible if we follow the traditional administrative procedure aimed at reviewing the legality of the decision at the moment it was taken. This is an unexpected consequence of the extension of the scope of the right to be heard5.The Administrative Courts need indeed to assess, according to the European Court of Justice, “whether the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different”6.Therefore, the third-country national needs to highlight to the administrative court the (new) elements that could have led the administrative procedure to another outcome.
    2. The administration (Foreigners Office) has also adapted its practice. It published a “questionnaire” asking third-country nationals nine questions regarding their health, their family situation and the reasons why they do not wish to return to their country of origin. The use of this form has not been automatized yet, and is usually completed once the third-country national has been arrested and thus once a first decision has been made – which is too late.Even if it was automatic, the right to be heard is not limited to an interview. It also“requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision (…) to allow the person concerned to understand why his application is being rejected ”7.In this context, the accuracy of the motivation of the decisions taken is another big challenge for the Foreigners Office.
    3. The judicial jurisdictions are not on the right track. They are mostly left aside. The gap in the Return Directive, whereby there is no provision concerning the right to be heard, also applies to Belgian immigration law. Such a right is however protected by the general principle of EU law, and by the general principle of Belgian administrative law (audi alteram partem) or right of the defence, but the judicial judge is not used to those general principles. The Court of Cassation found in September 2016 that the right to be heard was not infringed if a third-country national was not heard before his detention, because there is no legal rule providing such an interview.8

    1. The administrative tribunals are on the right track. They lead the development of the right to be heard, and are thus also the ones defining its scope within the limits of the case-law of the European Court of Justice.9In the BENALLA case, the Belgian Conseil d’Etat decided in October 2016 that the right to be heard as a general principle of EU law was not part of public policy, as the general principle of Belgian administrative law “audi alteram partem” was also not part of public policy10. This is an (unfortunate but) clear application of the principle of equivalence.

As an answer to the question: what is the impact of the case-law of the Court of Justice on the right to be heard on Belgian practice? I would say that this impact is very significant. My feeling is that the administrative judge is now really alert to the evolution of European case-law in the matter.

The administration has not yet found the way to meet the criteria set by the Court. But, once this is achieved, we will probably have less success alleging the infringement of the right to be heard.

The right to be heard will probably become more real than it was some months ago. It is a real tool in the protection of fundamental rights.

1. [M.M. against Ireland, 22.11.2012, C-277/11, §87]
2. [S. JANSSENS and P. ROBERT, “Le droit d’être entendu en matière d’asile et migration : perspectives belge et européenne », R.D.E., 2013, n°174, pp. 379 – 399.]
3. [Chambre des mises en accusation de Bruxelles, 29.10.2013 and Conseil du contentieux des étrangers, 7.2.2013, n°96.713.]
4. [Conseil d’état, 15.5.2013, n°9.659 and Conseil du contentieux des étrangers, 31.7.2013, n°107.762.]
5. [For example : Conseil du contentieux des étrangers, 4.7.2016, n°171.199]
6. [M.G. and N.R. against the Netherlands, 10.9.2013, C-383/13, §44.]
7. [Boudjlida against France, 11.12.2014, C-249/13, §38.]
8. [Cour de cassation, 21.09.2016, P.16.0939.F]
9. [See, for example, Conseil du contentieux des étrangers, 8.9.2016, n°174.352 : « en l’occurrence, dans la mesure où la décision entreprise est une interdiction d’entrée, prise unilatéralement par la partie défenderesse, sur la base de l’article 74/11 de la Loi et qu’il ne ressort nullement des pièces versées au dossier administratif que, dans le cadre de la procédure ayant conduit à la prisse de cet acte, la partie requérante a pu faire valoir des éléments relatifs à sa situation personnelle, dont la prise en compte aurait pu amener à ce que la procédure administrative en cause aboutisse à un résultat différent, le Conseil estime que le droit d’être entendu en tant que principe général de droit de l’Union européenne, imposait à la partie défenderesse de permettre à la partie requérante de faire valoir utilement ses observations ».]
10. [Conseil d’état, 18.10.2016, n°236.171.]

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