The Queen v Secretary of State for the Home Department, ex parte John Gallagher.
Date: 1995-11-30
16 It is settled law that the object of Article 9(1) of the directive is to ensure minimum procedural safeguards for persons affected by a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit. That provision, which applies where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, envisages the intervention of a competent authority other than the authority empowered to take the decision. In proceedings before that competent authority the person concerned must enjoy such rights of defence and of assistance or representation as are provided for by the domestic law of that country (see, in particular, Joined Cases C-297/88 and C-197/89 Dzodzi v Belgium [1990] ECR I-3763, paragraph 62).
17 As the Court has already held, the purpose of the intervention of the competent authority referred to in Article 9(1) is to enable an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure, to be carried out before the decision is finally taken (Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 15, and Case 131/79 Regina v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, paragraph 12). The Court has also ruled that, save in cases of urgency, the administrative authority may not take its decision until an opinion has been obtained from the competent authority (Case 98/79 Pecastaing v Belgium [1980] ECR 691, paragraph 17, and Dzodzi, paragraph 62).
24 The directive does not specify how the competent authority referred to in Article 9 is appointed. It does not require that that authority be a court or be composed of members of the judiciary. Nor does it require the members of the competent authority to be appointed for a specific period. The essential requirements are, first, that it be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive and, second, that the authority follow a procedure enabling the person concerned, on the terms laid down by the directive, effectively to present his defence (Dzodzi, paragraph 65, and Adoui and Cornuaille, paragraph 16). It is for the national court to determine in each case whether those requirements have been met.
25 As regards the form of the opinion of the competent authority, the objectives of the system provided for by the directive require that the opinion be duly notified to the person concerned, but the directive does not require the opinion to identify by name the members of the authority or indicate their professional status (Adoui and Cornuaille, paragraph 18), since such identification is relevant only for the purpose of enabling the national court to determine whether the members of the authority are independent and impartial.