Dabrowski v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 06 August 2019 |
| Neutral Citation | [2019] IEHC 609 |
| Court | High Court |
| Docket Number | [2017 No. 724 JR] |
| Date | 06 August 2019 |
[2019] IEHC 609
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2017 No. 724 JR]
Judicial review – Removal order – Exclusion order – Applicant seeking an order of certiorari quashing both a removal order and an exclusion order – Whether the respondent’s decision to make the removal and exclusion orders against the applicant was lawfully made under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015
Facts: The applicant, Mr Dabrowski, challenged a decision made by the respondent, the Minister for Justice and Equality, on 13 September 2017, affirming a removal order, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2015 and a five-year exclusion order, under Reg. 23 of those Regulations, each made on 27 June 2017, against the applicant, a Polish national and, hence, European Union citizen. The applicant was given leave to challenge the review decision by seeking the following principal orders: (i) an order of certiorari quashing the review decision; and (ii) an order of certiorari quashing both the removal order and the exclusion order. The application raised two broad issues: (a) Did the Minister’s decision to make the removal and exclusion orders against the applicant breach the separation of powers under the Constitution of Ireland or breach the rights of the applicant under the European Arrest Warrant Act 2003, the Constitution, the European Convention on Human Rights, or the Charter of Fundamental Rights of the European Union? (b) Was the Minister’s decision to make the removal and exclusion orders against the applicant lawfully made under Directive 2004/38/EC (the Citizens’ Rights Directive) and the 2015 Regulations?
Held by the High Court (Keane J) that, having applied the principles identified by the Supreme Court in Lofinmakin v Minister for Justice, Equality and Law Reform 4 IR 274 (at 293) and Goold v Collins [2005] 1 ILRM 1, the first issue was no longer justiciable, and Keane J did not propose considering it. Keane J rejected the argument that the decision was irrational or unreasonable in the manner in which it dealt with the applicant’s claim concerning the principle against non-refoulement. Keane J held that the applicant’s argument that, because he was in custody, serving various prison sentences, when the decision to make a removal order and exclusion order against him was made, his conduct could not represent a ‘present’ threat affecting one of the fundamental interests of society, as a condition precedent to a removal order under Reg. 20(1)(b) of the 2015 Regulations, transposing the requirements of Art. 27(2) of the Citizens’ Rights Directive, was not a tenable argument. The applicant failed to persuade Keane J that that the decision that his personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society to warrant his expulsion was either a disproportionate or an unreasonable one. Keane J rejected the applicant’s submission that there was a breach of his entitlement to fair procedures. Keane J was satisfied that the decision was not rendered unlawful by any material error of fact identified by the applicant.
Keane J held that the application for judicial review would be refused.
Application refused.
This is a challenge to a decision made by the Minister for Justice and Equality (“the Minister”) on 13 September 2017, affirming a removal order, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”) and a five-year exclusion order, under Reg. 23 of those Regulations, each made on 27 June 2017, against the applicant, a Polish national and, hence, European Union citizen. For ease of reference, I will refer to the decision of 13 September 2017 as “the review decision.”
The 2015 Regulations were made under the powers conferred on the Minister under s. 3 of the European Communities Act 1972 for the purpose of giving effect to Directive 2004/38/EC (“the Citizens” Rights Directive”).
The applicant was born in 1983. It is unclear when he arrived in the State. He has variously asserted that he arrived in the State on 2 February 2014 or at some time in 2012.
The applicant first came to the attention of An Garda Síochána on 15 October 2015 in relation to a theft offence. He has since accumulated a total of 47 convictions and been sentenced by the District Court on ten separate occasions between 11 November 2016 and 7 March 2017, for 21 motoring offences, 22 theft offences, two burglaries and two failures to appear in court.
The Garda National Immigration Bureau (“GNIB”) wrote to the Minister on 3 May 2017 to request that consideration be given to making removal and exclusion orders against the applicant. On 29 May 2017, through the Irish Naturalisation and Immigration Service (“INIS”), the Minister wrote to the applicant to notify him of the Minister's proposal to make both a removal order and an exclusion order against him. The Minister was proposing to make a removal order under the power to do so conferred by Reg. 20(1)(b) of the 2015 Regulations where, in the opinion of the Minister, the person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society to warrant his or her removal. The conduct identified was the commission of the various motoring, theft, burglary and failure to appear offences already described, as evidenced by his conviction and sentence for those offences on various dates in 2016 and 2017.
The letter went on to notify the applicant that the Minister was also proposing to make an exclusion order against him, under Reg. 23(1) of the 2015 Regulations, for a period of five years from the date of his removal from the State.
The letter notified the applicant of his entitlement, in accordance with Regs. 21(b) and 23(4)(b) of the 2015 Regulations, to make representations to the Minister within 15 days of the date of issue of the notification. No such representations were received.
The Minister made both a removal order and an exclusion order against the applicant on 27 June 2017. Those orders were based upon a six page “examination of file” report and recommendation, made by an officer of the Minister on the same date.
On 10 July 2017, and (oddly) again the following day, through his solicitor, the applicant sought a review of the decision to make a removal order, pursuant to Reg. 25(1) of the 2015 Regulations, and the suspension of the enforcement of that order, pursuant to Reg. 25(6) of those Regulations. Those requests included various representations on the applicant's behalf.
On 13 September 2017, the decision to make a removal order and a five-year exclusion order against the applicant was affirmed. That is the review decision now under challenge.
By letter of 15 September 2017, the Minister notified the applicant of that decision, furnishing him with a copy of it and the nine-page report and recommendation on which it was based.
The application is based upon a statement of grounds filed on 19 September 2017, supported not by an affidavit of the applicant but an affidavit of the applicant's solicitor, sworn on the same date, ostensibly on the basis of urgency.
Although the relevant Order was not produced in the course of the hearing before me, I was informed that the applicant was given leave to challenge the review decision by seeking the following principal orders:
(i) An order of certiorari quashing the review decision and
(ii) An order of certiorari quashing both the removal order and the exclusion order, each made on 27 June 2017.
The Minister's statement of opposition was filed on 20 November 2017. It is grounded on an affidavit of Tom Doyle, an assistant principal officer in the Minister's department, sworn on an illegible date in November 2017, though filed on 28 November 2017.
On 16 December 2015, a District Judge in the District Court of Krakow, Poland, issued a European Arrest Warrant (“EAW”) for the applicant to serve three prison sentences of 14 months, 8 months and 18 months imposed on him on 15 December 2009, 30 November 2012 and 22 November 2013, respectively, for various offences of assault, criminal damage, theft, and unlawful possession of controlled drugs. Those offences were committed on various dates between July 2009 and June 2013.
The High Court endorsed the EAW for execution on 14 November 2016 under the provisions of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”). The applicant was produced before the High Court on foot of that warrant on 16 January 2017. The applicant chose to contest his surrender and was remanded in custody from time to time, pending the necessary hearing. Those proceedings were entitled “Minister for Justice and Equality v Dabrowski [2016 No. 205 Ext.]”. In particular, the applicant sought to rely on a point that was then the subject of a pending Supreme Court Appeal in Minister for Justice and Equality v Lipinski [2016] IESCDET 96 (4 July 2016). That point was later made the subject of a preliminary reference to the Court of Justice of the European Union in Minister for Justice and Equality v Lipinski [2017] IESC 26 (Unreported, Supreme Court, 22 May 2017).
In his statement of grounds, the applicant advances twelve grounds upon which he...
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