Case summaries
The applicant brought an administrative action before the Administrative Court of the Circuit of Lisbon against the Ministry of Internal Affairs - Foreigners and Borders Service (SEF), in which he sought the annulment of the decision of the National Director of the SEF determining his transfer to Italy and the condemnation of the requested entity in the continuation of the process of international protection.
The Central Administrative Southern Court dismissed the appeal and, on grounds other than those set out in the contested judgment, upheld the decision to annul the decision of the National Director of SEF.
The right to be represented by a lawyer in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 will only apply when an appeal to a return decision has been lodged and free legal assistance will be subject to national domestic legislation.
This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.
It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision.