Balc and Others v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 19 January 2016
• Neutral Citation: [2016] IEHC 47
• Date: 19 January 2016
• Docket Number: [2015 No. 121 J.R.]
• Court: High Court

BETWEEN

TRAIAN BALC, DOINA BALC AND ALINA BALC (A MINOR, SUING THROUGH HER NEXT FRIEND AND MOTHER DOINA BALC)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2016] IEHC 47

Eagar J.

[2015 No. 121 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Reg. 20 (1) of the European Communities (Free Movement of Persons Regulations) (No. 2) 2006 – The Criminal Justice Act 1960 – Criminal Law (Rape) Amendment Act 1990 – Directive 2004/38/EC – Deportation – Certiorari – Public interest – Appropriate redressal forum – Breach of fair procedures

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent who made the removal order in relation to the first named applicant who was serving a sentence of imprisonment for committing an offence contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990. The respondent contended that a challenge to the initial decision was not maintainable in the present judicial review proceedings as that decision had been superseded on review. The applicants contended that the internal review procedure did not constitute a lawful redress as it was neither judicial nor an independent procedure. The applicants also averred that the first named applicant was qualified for a right of permanent residence in Ireland by virtue of Directive 2004/38/EC, that the respondent applied incorrect legal test while making an order for removal and that the decision making and enforcement process adopted by the respondent was cumulatively unfair.

Mr. Justice Eagar refused to grant an order of certiorari in relation to the first named applicant. The Court held that since the first named applicant had sought an internal review of the original removal order conducted by the respondent department, the decision on review was the subject of the present proceedings. The Court observed that reg. 21 of the European Communities (Free Movement of Persons Regulations) (No. 2) 2006, which provided for purely administrative review, was not incompatible with art. 31 of the Directive 2004/38/EC which required both judicial and administrative redress against adverse decisions as the mechanism for judicial review had been provided under o. 84 of the Rules of the Superior Courts. The Court found that since the first named applicant had been convicted for committing grave sexual offence, the respondent applied the correct legal test for making the expulsion order of the first named applicant under art. 28 (2) of the Directive 2004/38/EC, which provided for exceptions on serious grounds of public policy or public security. The Court held that the respondent conducted a fair and proportionate assessment of the prevalent circumstances and that the decision making procedure adopted by the respondent was not cumulatively unfair.

JUDGMENT of Mr. Justice Eagar delivered on the 19th day of January, 2016

Background

1 The applicants are a family of Romanian and resultantly, EU citizens who are living in Ireland. The first applicant is the husband and father of the third applicant. He is married to the second applicant, who is also the mother of the third applicant. The Minister for Justice and Equality (‘the Minister’) made a removal order which imposed an exclusion period of five years against the first applicant under Regulation 20 (1) of the European Communities (Free Movement of Persons Regulations) (No. 2) 2006 (S.I. No. 656 of 2006) (‘the 2006 Regulations’). The removal order was notified to the applicant and his solicitor by letter dated the 26th February, 2015. The first applicant, through his solicitor, applied for an internal review of the decision by letter dated the 3rd March, 2015. An internal review decision was issued to the first applicant by letter of the 5th March, 2015. The first applicant was in the process of serving a sentence of imprisonment which was due to expire on the 7th March, 2015. However he was released on temporary release pursuant to the Criminal Justice Act 1960 on the 6th March 2015. Upon his release he was arrested and taken to Dublin Airport for deportation.

2 On the same date the first applicant's solicitor, Mr. O'Briain, through counsel made an ex parte application for leave to apply by way of application for judicial review seeking an order of certiorari quashing the decision of the respondent to make a removal order and other reliefs which will be set out further. This Court ordered that the Minister be restrained from removing the applicant from the jurisdiction up until initially the 16th March and subsequently to the 27th March, 2015. Leave to seek judicial review was granted to the applicants by order of this Court and they were granted leave to seek an amended statement of grounds. The amended statement grounding the application for judicial review dated 27th March, 2015, sought the following reliefs:

(a) An order of certiorari quashing the decision of the respondent as notified to the first named applicant's solicitor by letter of the 25th February, 2015 to make a removal order pursuant to the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (the Regulations) in respect of the first named applicant and quashing said removal order;

(b) an order quashing the decision of the respondent as notified to the first named applicant's solicitor by letter of the 25th February, 2015 to apply pursuant to the Regulations for a five year exclusion period from entering the State in respect of the first named applicant;

(c) an order of certiorari quashing the decision of the respondent as notified to the first named applicant's solicitor by letter of the 25th February 2015 deeming the first named applicant's removal from the State on foot of the removal order as an urgent matter (and failing to afford him the normal thirty day period prior to any removal);

(d) an order pursuant to and/ or having regard to the provision of Regulation 20 (7) of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 suspending the removal of the first named applicant from the State pending the outcome of these proceedings;

(e) without prejudice to the foregoing, an injunction, including an interim injunction restraining the respondent, his servants or agents from removing the first named applicant from the State (and/ or detaining him following his release from the Midlands Prison for that purpose) pending the outcome of these proceedings and/ or pending further order of this Court;

(f) as and if necessary, an injunction requiring the respondent to return the applicant to the State pending the outcome of these proceedings in the event of his removal;

(g) A declaration that Regulation 20 (1) (b) of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 is incompatible with Article 30 (2) and/ or Article 31 of Directive 2004/38/EC;

(h) a declaration that Regulation 20 (4) (a) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 is incompatible with Article 30 (3) of Directive 2004/38/EC in that it purports to authorise the arrest and detention of the first named respondent at any time following the making of the removal order, without further notice to him;

(i) an order pursuant to the inherent jurisdiction of the Court directing the release from detention of the first named applicant on such terms and conditions as the Court may direct and/or directing his release from detention pursuant to O. 84 r.15 Rules of the Superior Courts.

(j) A declaration that the proposed removal of the first named applicant from this State (and/ or without breach of prejudice his exclusion for entry to this State for a period of five years is in breach of the constitutional rights of the applicant pursuant to Article 40.3 of the Constitution and/ or their right to protection pursuant to Articles 7 and 24 of the Charter of Fundamental Rights and/or is in breach of the respondent's obligation pursuant to s. 3 (1) of the European Convention on Human Rights Act 2003 to perform her functions in a matter compatible with Article 8 of the European Convenction on Human Rights

(k) a declation that the European Communities (Free Movement of Persons) (No. 2) Regulations and the procecures contained therein with respect to a review or an appeal against a deicsion to make a removal and/ or exclusion order and/ or said procedures in combination with the supervisory role of the High Court in exercising judical review do not constitute an effective remedy or adequate procedural safeguards within the terms of Article 30 (3) of Directive 2004/38/EC and Article 47 of the Charter of Fundamental Rights;

(l) A declaration that pursuant to Article 30.3 and Article 31 of the Directive and having regard to Article 47 of the Charter, the first named applicant has an entitlement to a review/ appeal against a removal and exclusion order and decision to an independent court or tribunal capable of making findings of fact and law which court or tribunal is required to have the capacity to reverse the decision at first instance;

(m) without prejudice to (a) and (b) above and as and if necessary, an order of certiorari quashing the decision of the respondent as notified to the first named applicant and his solicitor by letter of the 5th March, 2015, to affirm the removal order (incorporating the exclusion period);

(n) as necessary and appropriate an order permitting the applicants having regard to the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended by s. 34 of the Employment Permits (Amendment) Act 2014) to amend this statement of grounds within the period of twenty eight days from the date of the removal order (26th February, 2015).

3 The following are the grounds upon which the relief is sought:

The decision to make the removal order with the exclusion period/removal order

4 The decision making...