C v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] IECA 219 |
| Date | 24 July 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2019] IECA 219 [318/2017] |
[2019] IECA 219
THE COURT OF APPEAL
Judicial Review
Whelan J.
Irvine J.
Whelan J.
Kennedy J.
Neutral Citation Number: [2019] IECA 219
[318/2017]
Asylum & immigration – Removal order – Appellant convicted of assault and made subject of order – Application to seek judicial review – Appeal against refusal
Facts: The appellant, a Romanian national, had been removed from the State of the foot of a removal order made following his conviction for a serious assault. He applied for leave to seek judicial review, which was refused by the High Court. He now sought to appeal notwithstanding his removal from the State in 2017, arguing that the removal was unreasonable on proportionality grounds.
Held by the Court, that the appeal would be dismissed. The appellant had failed to discharge the burden of showing the judgment of the decision maker had been unreasonable and had failed to plead other grounds correctly at first instance.
This is an appeal against the judgment of Ms. Justice O'Regan delivered in the High Court on 4th April, 2017 and the order consequent on same perfected 15th June, 2017, refusing an application by way of judicial review for an order of certiorari quashing a decision made by the respondent on 10th February, 2016, upholding a removal order and exclusionary period of three years in respect of the appellant imposed on 29th October, 2015.
The issues for decision on this appeal can be summarised as follows: -
(i) Whether the trial judge determined that she had no jurisdiction to consider the principle of proportionality in the current application in respect of the review decision made by the respondent and, if so, whether this constituted an error in law.
(ii) Whether the trial judge was correct in finding that the said review decision was proportionate.
(iii) Whether the trial judge erred in law and in fact by failing to consider all the mitigating circumstances relating to the appellant.
(iv) Whether the trial judge erred in law and in fact by failing to consider the appellant's submissions that the review decision was additionally defective due to the lack of reasons provided for the imposition of a 3 year exclusionary period in line with the recent decision of MS v. Minister for Justice [2016] I.E.H.C. 762, which had been decided in the interim.
(v) Whether the trial judge erred in law and in fact by misdirecting herself in commenting that the appellant's submission that the respondent was imposing an extra judicial sanction appeared ‘ to be an attack on the Directive itself [2004/38/EC]’ rather than on the respondent's application of it.
The appellant is a Romanian national who has resided in Ireland since August, 2009, having lived in Italy for three years prior to that and who gained “permanent residence” status in 2014. On the 10th March, 2015, the appellant was convicted of assault causing harm (with theft also taken into consideration) which occurred on 9th March, 2014, when the appellant violently assaulted a woman on the North Circular Road, Dublin when he punched and kicked her in the face a number of times. The Garda report stated that he initially sought to blame the victim and contended that he acted in self-defence.
In a victim impact statement adduced prior to sentencing, the injured party indicated that she had sustained a broken nose, a perforated eardrum, ongoing pain, sleep disturbance, breathing difficulties, anxiety, memory loss, a lack of concentration and a propensity to lose her temper since the incident. A sentence of three years and six months imprisonment was imposed with the final two years suspended. Prior to this, the appellant had no criminal convictions in the State, although he had come to the attention of Gardaí in relation to a public order offence on 21st August, 2009.
By letter dated the 28th July, 2015, the Irish Naturalisation and Immigration Service (INIS) wrote to the appellant notifying him that the respondent proposed making a removal order against him under Regulation 20(1)(a)(iv) of the of the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (‘the Regulations’), including an exclusion from the State for a period of 3 years and invited his submissions. This letter indicated that an attached Garda Report dated the 15th September, 2015, which outlined the circumstances of the appellant's conviction, would be taken into consideration in reaching a decision. The appellant, who was in Mountjoy Prison serving the aforesaid sentence at that time, instructed his solicitors to write a letter dated 13th August, 2015, which made representations as to why the proposed orders should not be made.
Notwithstanding the appellant's representations, a removal order was made by the respondent on the 29th October, 2015. The appellant was notified of the making of the said order (and the 3 year exclusion period), and the reasons for same, i.e. that the appellant's conduct meant that his presence in the State posed ‘a risk to public policy’.
By letter dated 8th December, 2015, the appellant sought a review of the respondent's decision to make the orders and submitted further representations for why the orders ought to be quashed. On the 10th February, 2016, the respondent communicated to the appellant that the orders had been upheld.
The judicial review application was heard before O'Regan J. on 23rd March, 2017, and judgment was delivered on 4th April, 2017, whereby the appellant's relief was refused, with costs awarded to the respondent. On foot of the removal order, the appellant was removed from the State on 1st July, 2017. The appellant appeals that decision on the grounds as considered below.
(i) Assessment of Proportionality
(a) Appellant
The appellant refers to para. 33 of the High Court judgment wherein the trial judge states that: -
‘I am satisfied that it is not for either the Applicant or the Court to attribute the appropriate weight to the mitigating circumstances and other matters but rather this is a matter for the decision maker provided the decision is fair and proportionate which I am satisfied it is.’
The appellant contends that this approach constitutes an error in law and is a determination by the trial judge that it was not for the Court to assess proportionality in respect of the review decision undertaken by the respondent under the Regulations.
The appellant refers to Directive 2004/38/EC which provides: -
‘ Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and should be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures…the personal conduct of the individual concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society.’ (emphasis added)
The appellant refers to the decisions of N.M. v. Minister for Justice, Equality and Law Reform [2016] I.E.C.A. 217 and ISOF v Minister for Justice, Equality and Law Reform (No 2), [2010] I.E.H.C. 457 to the effect that a court can assess the proportionality of administrative decisions affecting fundamental rights and that the court may ‘further examine the conclusions reached and ensure that they follow from the decision-maker's premises. The court can further quash for material error of fact’ ( per Hogan J. at para. 53 of N.M); in order to assess proportionality, the court makes ‘reference to the evidence, information and documentation available to or procurable by the decision maker at the time…’ ( per Cooke J. at para. 10 of ISOF). The appellant asserts that the current application is of such a kind, being one from which no appeal lies to any independent body and which involves the EU right to free movement.
The appellant further submits that an assessment of the proportionality of the review decision of the respondent necessitated an assessment by the trial judge of the mitigating factors and the weight that ought to have been attached to these factors by the respondent. It was asserted that the fact that these factors were referred to by the respondent in the decision does not necessarily mean that the proportionality requirement was complied with. The appellant submits that it was not open to the trial judge to consider the proportionality of the decision by looking at the negative factors only.
(b) Respondent
The respondent submits that para. 33 of the High Court judgment did not constitute a finding by the trial judge that it was ‘not for the Court to determine proportionality’ but rather it correctly states a well-established principle of judicial review, that it is not for the appellant or the Court to attribute the appropriate weight to the mitigating circumstances and other matters and also expressly recognises the principle of proportionality. The respondent states that authority for this proposition is found in G.K. v Minister for Justice & Ors [2002] 2 I.R. 418, Olakunori v Minister for Justice [2016] I.E.H.C. 473, M.E. v Refugee Appeals Tribunal [2008] I.E.H.C. 192 and Smolka v Minister for Justice and Equality [2016] I.E.H.C. 641.
The respondent accepts that a review decision of a removal order may be subjected to a proportionality assessment by a court and states that the High Court did conduct such an assessment, quoting para. 32 of the judgment where the trial judge stated that: -
‘…I am satisfied that the decision was not arrived at based upon conviction only. Further, I am satisfied that the decision maker did in fact take into account all of the circumstances of...
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