GC v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 04 April 2017
• Neutral Citation: [2017] IEHC 215
• Docket Number: [2016 No. 164 J.R.]
• Court: High Court
• Date: 04 April 2017

[2017] IEHC 215

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2016 No. 164 J.R.]

BETWEEN

G. C.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Affirmation of removal order – Basis for making removal order – Conviction for single offence – Public policy – Proportionality – Directive 2004/38/EC

Facts: The applicant sought an order of certiorari for quashing the review decision of the respondent, which upheld the initial removal order and the exclusionary period against the applicant. The applicant contended that the impugned decision was disproportionate as the applicant's conviction for the assault being the only offence he had committed, could not be a reasonable basis for believing that the applicant was or likely to be a serious threat to the public policy or the security. The respondent contended that the evaluation of the victim impact statement in relation to the assault case and the personal conduct of the applicant under art. 27 of the Directive 2004/38/EC, together were sufficient to warrant the impugned decision against the applicant.

Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the impugned decision was made by considering the circumstances of the case. The Court found that the respondent had scrutinised in detail, the personal conduct of the applicant and came to conclude that the applicant intentionally, in an inebriated state had inflicted various injuries to the victim. The Court held that the conduct of the applicant entitled that respondent to take appropriate steps in order to ensure that the citizens of the State were protected in the interests of the common good.

JUDGMENT of Ms. Justice O'Regan delivered on the 4th day of April, 2017

Issues

1 On 4th April, 2016 the applicant herein secured leave to maintain the within judicial review proceedings based upon a Statement of Grounds bearing date 10th March, 2016. In that Statement the relief sought is an order of certiorari quashing the review decision of the respondent communicated to the applicant on or about 10th February, 2016 which review decision upheld the initial removal order and exclusionary period as against the applicant. In addition the applicant seeks a declaration that the single offence which the applicant was convicted of on 10th March, 2015 is of itself insufficient to ground any reasonable belief that the applicant is now or likely to be in the future a serious threat to public policy or security and that the decision of the respondent is disproportionate.

2 Such relief is based upon an assertion that the applicant who is an EU citizen with permanent resident status within this jurisdiction should not be removed and excluded from the jurisdiction for a three year period based on a single offence and conviction in circumstances where a substantial portion of the sentence imposed was suspended. It is asserted that the respondent acted disproportionately in basing the order of removal and exclusion on a sole conviction as this would be insufficient to constitute a threat to public policy or security. The applicant also claims that insufficient weight was attributed to mitigating circumstances and it is asserted that the respondent was imposing an extra judicial sanction on the applicant.

Brief background

3 The applicant is a Romanian citizen born in 1986. In 2006 he left Romania and resided in Italy for approximately three years prior to arriving in Ireland on or about 17th August, 2009. The applicant asserts that he never came to the adverse attention of An Garda Síochána (the applicant has not sworn an affidavit however his solicitor has on 2nd March, 2016 sworn an affidavit and at para. 9 thereof it is stated 'the applicant has no other convictions and has never been in trouble with the gardaí or in prison').

4 On 10th March, 2015 the applicant was convicted of an assault which occurred on or about the 9th March, 2014 on or around the North Circular Road in Dublin. The applicant was sentenced to three years and six months in prison with the final two years suspended. In the events the applicant was released from prison on 23rd April, 2016.

5 While the applicant was in prison the respondent wrote a letter bearing date 28th July, 2015 proposing to make a removal order in respect of him and inviting representations which in due course were made in a letter of 13th August, 2015. Notwithstanding the foregoing the respondent notified the applicant of the signing of a removal order bearing date 29th October, 2015. On 8th December, 2015 the applicant made an application for a review of the decision aforesaid and ultimately the initial removal order together with the three year exclusion was upheld by a decision of the 27th January 2016 communicated to the applicant by letter of 10th February, 2016 and it is this decision that is the subject matter of the leave aforesaid.

6 A Statement of Opposition was filed on 24th June, 2016 where the allegations set out in the Statement to Ground the application were denied and it was further denied that the respondent acted disproportionately or that the decision was based on a single conviction but rather on all the relevant factors including the terrifying ordeal for the victim, the assertion by the applicant that he was acting in self defence and his refusal to answer questions in relation to the amount of force he used. Furthermore it is asserted that the applicant in fact came to the attention of An Garda Síochána on 21st August, 2009 in respect of a public order offence. The Statement of Opposition also suggests that discretionary relief should not be available to the applicant.

7 In addition to the foregoing the pleadings have been supplemented by two affidavits of James Doyle a Sergeant in the Garda National Immigration Bureau respectively dated 25th November, 2016 and 14th March, 2017. As a consequence of the foregoing an affidavit of Christine Haselmann, solicitor on behalf of the applicant was also filed on 16th March, 2017.

8 The two affidavits aforesaid of Sergeant Doyle are for the purposes of identifying that although the applicant was released from prison on 23rd April, 2016 he was required to present himself at Garda National Immigration Bureau offices on a number of occasions but failed to do so and in addition he appears to have moved from Rathmines to Fairview at a point when he did not notify An Garda Síochána of same notwithstanding that this was also a requirement of the applicant. The applicant failed to attend on 27th April, 2016, the 9th August, 2016, 'next week' as identified in a letter on the applicant's behalf on 16th of August, 2016, on 6th October, 2016 and on 24th January, 2017.

9 The replying affidavit was for the purposes of identifying that the dates conflicted with a number of other obligations of the applicant specifically work related and although his solicitors advised him of the need to comply with the requirement to attend it indicated that 'perhaps the applicant had not fully understood the extent of these obligations' and since then it has been impressed upon the applicant that he has an obligation to attend. Furthermore the replying affidavit suggests that the Court cannot refuse relief as a result of his omissions to report to the respondent.

10 Both parties have tendered written submissions.

Submissions

(A) The Applicant

11 The applicant submits that he was convicted of assault only on 10th March, 2015 and pleaded guilty at the earliest opportunity. He had no previous convictions and two years of the three years six months sentence was suspended. In addition the applicant secured early release from prison. The applicant acknowledges that at sentencing it was submitted that that incident had been provoked by the victim and the applicant reacted disproportionately...