Greece – Three-Member Administrative Court of First Instance of Thessaloniki – Department B – 18 May 2018 – Mariglen Latifi v Minister of Immigration Policy
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Headnote:
The refusal to grant residence permit and the subsequent return order were issued without a hearing. Although a hearing in administrative procedures initiated by the applicant is not always required, the Court found that the hearing would have led to a well-rounded and more substantial review of his right to remain under a different type of residence permit, as well as any factors precluding his return.
Facts:
The Secretary General of the Devolved Administration of Macedonia – Thrace (SG) rejected the applicant’s petition for the granting of a residence permit under Article 108 of Law 4251/2014 and, as a result, issued a return order. The outcome of his application was justified on the basis of a conviction for a drug related offence committed by the applicant. Given the conviction of the applicant for a drug related offense, the devolved administrative authority determined that the applicant does in fact pose a threat to public order, according to Article 6 of the same law. With his current application, the applicant wishes to annul the decision of the SG.
The applicant claimed that the decision had to be annulled because (i) he had not been given the right to a hearing and the decision was (ii) lacking sufficient justification since the public order and security reasons were not made specific. Moreover, the refusal to grant leave to remain and the return decision were (iii) disproportionate since, due to the lack of a fair hearing, the authority did not have an adequate consideration of his ties to the country and his good character regarding his obligations towards the state.
Decision & Reasoning:
Focusing on the rejection of his application, the court held that the claim for a violation of his right to a hearing was unfounded. A hearing is not required as part of the administrative procedure when the decision is the result of the applicant’s own application. In other words, neither Article 20 of the Constitution nor Article 6 of the Administrative Procedure Code require for the applicant to be called for a hearing after his application has been rejected. Subsequently, it was underlined that the conviction of the applicant to imprisonment for a drug related offence is fully capable to substantiate the justification for a specific threat to public order and security.
Furthermore, the Court highlighted the particular nature of an Article 108 residence permit which provides for specific rights which allow the third country national to be treated as if he were a national in numerous situations. It is this particular character and elevated status of rights which requires an increased obedience to the legal order and consistent law-abiding behavior towards the Greek State which the third country national is wishing to become a part of even temporarily. Lastly, regarding the alleged lack of proportionality, the Court noted that given the consideration of all the mitigating circumstances during the criminal trial along with the fact that the time between the end of the applicant’s prison sentence and the decision in question – an amount of time which is not capable of demonstrating remorse or complete return to legality – is of lesser importance. Therefore, it found that the claim is ill-founded.
When examining the return decision issued for the applicant, the Court referenced CJEU jurisprudence which affirms that the right to a hearing is not absolute. According to Directive 2008/115, Member States have an obligation to issue a return decision as soon as they determine the illegal stay of a third-country national on their territory. Such a decision is not subject to annulment if the relevant authority decides to simultaneously and without a hearing issue a decision declaring both illegal stay and ordering their return to their home-country as long as the third country national concerned had had a chance to effectively make a case regarding their situation.
However, the process may be found to have been in breach of the applicant’s rights when the claims that would have been made are capable of affecting the validity of the return decision or of justifying the provision of a different type of leave to remain to the applicant. Consequently, the Court held that the facts of the particular case do not indicate the existence of a threat to public order and security of such gravity that the national authority is precluded, without a hearing, from giving him a different type of leave to remain following a new application and after further consideration of his ties to the country and the overall conditions surrounding his stay in Greece.
In the light of these considerations, the administrative authority is obliged to take into account all the factors which could render the return of the applicant unlawful under Article 8 ECHR, in order to ensure that the justification of the decision is fully compliant with the legal framework. Since the hearing of the applicant would have contributed to the betterment of his situation and would potentially lead to more substantial justification, the court accepted the applicant’s claim and annulled the decision in the part regarding the issuance of the return decision without a hearing.
Outcome:
The Court partly accepted the application. The Court refused to annul the decision of the devolved administration to not provide the applicant with a residence permit under Article 108. The return order was annulled.
Subsequent Proceedings :
The Court sent the case back to the devolved administration for a new and fully justified decision regarding the imposition of a return order.
