B.D.C., a national from the Democratic Republic of the Congo, and his daughter, E.C., entered France on 14 February 2020. Both filed applications for international protection, which were successively rejected by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 28 April 2022, and by the National Asylum Court (CNDA) on 6 January 2023. Following these rejections, the Prefect of the Vosges, by two orders dated 19 January 2023, withdrew their asylum application certificates, issued an order to leave French territory (OQTF) within 30 days, and designated the country of return.

The applicants challenged these prefectural decisions before the Administrative Tribunal of Nancy, which on 4 April 2023 partially upheld their claims, annulling the prefect’s decisions determining the applicant’s country of return, while rejecting the rest of their claims and upholding the OQTF.

The applicants then appealed to the Administrative Court of Appeal of Nancy, arguing that their right to be heard under Article 41 of the EU Charter of Fundamental Rights (the Charter) had been violated because they had not been allowed to make observations on their personal situation before the OQTF was issued. The Prefect filed an incidental appeal seeking to overturn the annulment of the country of return designation. On 12 December 2023, the Court of Appeal rejected the applicants’ appeal against the OQTF. It granted the incidental appeal lodged by the Prefect, reinstating the prefectural decisions concerning the designation of the country of return.

On 22 April 2024, the applicants filed a cassation appeal before the Council of State, arguing that their right to be heard under Article 41 of the Charter had been violated.

The Council of State first recalled the case law of the Court of Justice of the European Union, confirming that Article 41 of the Charter applies only to EU institutions, bodies and agencies, not to Member States. It examined the relevant procedural guarantees under French and EU law concerning the right to be heard on the adoption of removal measures. It specifically cited Articles L.431-2 ad L.611-1 of the Code on the Entry and Residence of Foreigners and the Right of Asylum (CESEDA), which transpose the Return Directive. The Council noted that these provisions do not create a separate right to be heard prior to the adoption of a removal order, and referred to the CJEU’s judgments in M.G., NR v Staatssecretaris van Veiligheid en Justitie (C-383/13, 10 September 2013), Sophie Mukarubega v. Préfet de la Seine-Saint-Denis (C-166/13, 5 November 2014) and Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques (C-249/13, 11 December 2014). The council noted that the CJEU, in M.G. and N.R., had observed that the Return Directive does not specify whether and under what conditions the right to be heard of third country nationals affected by removal or detention decisions, should be ensured. The CJEU further noted that it is for the Member States, in the context of their procedural autonomy, to determine the conditions under which the right to be heard must be ensured for third-country nationals in an irregular situation. However, in the same judgment, the CJEU held that the competent national authorities are not required, in all cases, to hear the person concerned when they already had the opportunity to present, in a useful and effective manner, their point of view on the decision in question. Furthermore, the Council of State noted that, in Sophie Mukarubega and in Khaled Boudjlid, the CJEU confirmed that the right to be heard did not imply that the authorities must enable the person concerned to submit specific observations on an OQTF, because the persons concerned already had the opportunity to express their views during the asylum procedure. The Council of State noted that, when submitting an asylum application, the third country national cannot be unaware that if the application is rejected, he/she may be subject to a removal, since they are adequately informed before the prefecture.

Regarding the designation of the country of return, the Council of State stressed that it was intrinsically linked to the OQTF and therefore forms part of the same administrative procedure. The council assessed the applicants’ claim under Article 3 of the European Convention on Human Rights and Article L.721-4 of CESEDA, which prohibited removal to a country where the person would face a real risk of torture or inhuman treatment and upheld the Court of Appeal’s analysis, which had found no direct, personal, and current risk.

In conclusion, the Council of State rejected the applicants’ cassation appeal in its entirety, confirming that their right to be heard had not been violated, that the prefectural decisions were lawful, and that no violation of Article 3 of the ECHR was established.