DS v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 October 2015
• Neutral Citation: [2015] IEHC 643
• Court: High Court
• Date: 20 October 2015

[2015] IEHC 643

THE HIGH COURT

[No. 773 J.R/2013]

S (D) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

D.S., R.S. AND M.S. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND R.S.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Extradition – The European Arrest Warrant Act 2003 – Crime and Sentencing – S. 4(1) of the Criminal Law (Rape) (Amendment) Act 1990 – Reg. 20 of European Communities (Free Movement of Persons) (No. 2) Regulations 2006 – Council Directive 2004/38 (EC) Art. 8 of the European Convention on Human Rights

Facts: The first named applicant sought leave to apply for judicial review for an order of certiorari for quashing the decision of the first named respondent directing the first named applicant to leave the State and imposing a five-year period of exclusion of the first named applicant from the date of his removal from the State. The first named applicant was surrendered to the requesting state pending determination of the present proceedings. He had served his sentence of six years for his conviction for rape under s. 4(1) of the Criminal Law (Rape) (Amendment) Act 1990. The first named applicant contended that the removal and expulsion order of the first named respondent was based on an objective bias as reflected from the way amendment was made by hand in the letter for changing the period of expulsion from ten years to five years. The first named applicant asserted that the review procedure adopted by the first named respondent was contrary to European Communities (Free Movement of Persons) (No. 2) Regulations 2006 as the same officers who made the removal order were involved in making the decision on internal review.

Mr. Justice McDermott granted an order of certiorari and quashed the decision of the first named respondent. The Court held that the procedure adopted by the first named respondent for review was not independent and contrary to reg. 21 (3) of the 2006 Regulations as the right to internal review recognizes an obligation to provide procedural safeguards in coherence with the purpose and intention of art. 31 of Council Directive 2004/38 (EC). The Court found that in order to determine whether objective bias existed, the perspective of a reasonable man under the same set of circumstances must be considered. The Court, however, agreed with other principles considered by the first named respondent while making the removal order, such as public policy, the nature and gravity of the crime, past criminal record, family ties and the best interests of the child. The Court opined that in cases where heinous crime was committed by the applicant, the consideration of the seriousness of the crime alone would not be sufficient warranting the removal of the applicant and other factors such as subsequent behaviour and conduct and probability of repeating anti-social acts must be adequately weighed.

1 JUDGMENT of Mr. Justice McDermott delivered on 20th day of October, 2015.

2 1. The applicant seeks leave to apply for judicial review for an order of certiorari quashing the decision of the first named respondent (the Minister) made 9 ^th August, 2013 requiring the first named applicant (D.S.) to leave the State, and the affirmation of that decision approved by the Minister on the 15 ^th October, 2013, following an internal review. An order is also sought quashing the Minister's order imposing a five year period of exclusion on D.S. from the date of his removal from the State. Declarations are also sought that the European Communities (Free Movement of Persons) (No.2) Regulations 2006 ( S.I. 656/2006) (the Regulations) as amended are ultra vires the powers of the Minister and that the respondents have failed to transpose adequately Council Directive 2004/38 (EC) into Irish law. Following an ex parte application to the High Court, MacEochaidh J. directed that the application be made on notice to the respondents and that the matter should proceed by way of "telescoped hearing" should the respondents consent. The removal of D.S. was stayed pending the determination of the proceedings. However, in the meantime, following the substantive hearing of these proceedings, the first applicant was surrendered to the Lithuanian government pursuant to the provisions of the European Arrest Warrant Act 2003 on foot of a European Arrest Warrant. The hearing proceeded on a telescoped basis and the respondents filed a draft Intended Notice of Opposition to be relied upon if the Court granted leave to apply for judicial review.

Background

3 2. The applicant is a convicted criminal. He is a Lithuanian national who arrived in Ireland in 2004. He lived in Galway with his partner, the second named applicant, R.S. and their child, the third named applicant M.S. who was born on the 20 ^th December, 2005.

4 3. D.S. was convicted of rape contrary to section 4(1) of the Criminal Law (Rape) (Amendment) Act 1990 at the Central Criminal Court on the 12 ^th June, 2009 and was sentenced to six years imprisonment on the 27 ^th July, 2009. The sentence was completed on the 19 ^th August, 2013. A rape under section 4 is defined as:

"a sexual assault that includes -"

5 (a) penetration (however slight) of the anus or mouth by the penis, or

6 (b) penetration (however slight) of the vagina by any object held or manipulated by another person."

7 The offence is punishable with a maximum sentence of life imprisonment.

8 4. By letter dated 21 ^st August, 2009 D.S. was informed by the Irish Naturalisation and Immigration Service (INIS) that the Minister proposed to make a Removal Order against him pursuant to regulation 20(1)(a) of the Regulations. The Minister also proposed to make an exclusion order preventing him from re-entering the State for a period of five years from the date of his removal. He was also informed of his entitlement to make representations in accordance with schedule 9 to the Regulations setting out reasons why the order should not be made. The reason for the proposal was D.S.'s conviction and sentence for the Section 4 offence and the Minister's opinion that his conduct was such that "it would be contrary to public policy to permit him to remain in the State". The letter was received by D.S. in prison. Gilmartin and Traynor solicitors replied to the letter indicating that their client wished to continue to reside in the State and enclosed a letter from the applicant's partner. From time to time the solicitors sought an update on the status of the consideration by the Minister of the proposal. Correspondence up to the 13 ^th July, 2010 indicated that the matter was still under consideration.

9 5. On the 8 ^th August, 2011 MacGuill and Company solicitors wrote on behalf of D.S. and enquired whether a decision had been made in the matter. If a decision had been made they sought its review and an opportunity to make representations. In a letter of 24 ^th May, 2012 it was submitted that a Removal Order should not be made or confirmed because D.S. was the parent of an Irish born child (M.S.) and to separate him from his son would be damaging. By letter dated 14 ^th June, 2012 however, it was indicated to the solicitors that a decision had not yet been made, and they were informed that representations could still be received on his behalf. A request was made that any further representations be made as soon as possible and specifically, that evidence be provided concerning the child M.S. and any role played by D.S. in his life.

10 6. The solicitors replied enclosing the child's birth certificate and the following information:

11 (a) the child's date of birth, the fact that he resided in Ireland since his birth, was attending national school in Galway and was in first class;

12 (b) the applicant was said to be a committed and supportive father. Prior to imprisonment he resided in Galway with his partner, R.S. the mother of M.S. with the child as a family unit. Mother and child regularly visited him in prison and he intended, following his release, to resume family life and his parenting role in the care and support of his child;

13 (c) R.S. supported the applicant's submission and indicated that he was a good father. She stated that their permanent home was in Ireland and that the proposed removal of D.S. would prevent him from parenting M.S. and have a significant detrimental effect on the child's welfare and development.

14 7. These representations were acknowledged by letter dated 22 ^nd July, 2013. The INIS was informed of a pending extradition application concerning D.S. in the High Court (Record Number 2008/131 EXT) in respect of two counts of sexual assault. By letter dated 7 ^th August, 2013 the solicitors requested that a decision not be made on the Removal Order until the extradition proceedings had concluded.

15 8. On the 13 ^th August, 2013 D.S and his solicitors were informed that a decision had been made pursuant to the provisions of Regulation 20(1)(a)(iv) that he be removed from the State and excluded for ten years from the date of his removal. The decision was based on the fact that D.S. had been convicted of the section 4 rape and sentenced to six years imprisonment. It was concluded that it would be contrary to public policy to permit him to remain in the State. He was informed that in accordance with regulation 21(1) of the Regulations he could seek a review of the decisions.

16 9. The Removal Order was addressed to D.S. in prison and dated 9 ^th August, 2013. It was made by Mr. Tom Doyle, Assistant Principal on behalf of the Minister. The letter was accompanied by a recommendation compiled by Mr. Enda Gordon of the Removals Order Unit. Mr. MacCraith, an Executive Officer, made a recommendation on the 8 ^th August, 2013 that the Removal Order be made and that D.S. be excluded for ten...