Grackovs v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] IEHC 186 |
| Docket Number | [2014 No. 281 J.R.] |
| Court | High Court |
| Date | 24 March 2017 |
[2017] IEHC 186
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
[2014 No. 281 J.R.]
AND
Asylum, Immigration & Nationality – The European Communities (Free Movement of Persons) Regulations 2006 and 2008 – Expulsion from State – Duration of stay in State – Serious public policy – Council Directive 2004/38/EC ('Citizenship Directive').
Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent who had made a removal order against him. The applicant contended that under art. 27(2) of the Citizenship Directive, the order of expulsion could only be made unless the first respondent would satisfy itself that the personal conduct of a person was a serious threat to the fundamental interests of the host member state. The applicant argued that his prior convictions could not be a basis to make a removal order under art. 27(2). The applicant also alleged a delay of nine months on the part of the first respondent for making the impugned order. The first respondent contended that it had considered in detail all the relevant materials coupled with the fact that the applicant came to the adverse attention of the Gardai several times before making the expulsion order.
Ms. Justice Stewart granted an order of certiorari and thus, quashed the removal order made against the applicant. The Court held that since the applicant had been staying in the State for more than 10 years, by virtue of art. 7(1) of the Citizenship Directive, the applicant was afforded enhanced protection. The Court held that the first respondent could not remove such a Union citizen unless serious grounds for the removal of the applicant had been established. The Court held that though the first respondent had enumerated 51 incidents of criminal behaviour and detailed description of the applicant's prior convictions, yet the foremost task for the first respondent was to determine the basis of the applicant's right, if any, to reside in the State. The Court held that since the applicant had spent a considerable time in the State, the first respondent had to meet a high threshold in making an expulsion order against the applicant.
The applicant in these proceedings seeks, inter alia, an order of certiorari to quash the first-named respondent's decision of 15th April, 2014, to make a removal order against him pursuant to the European Communities (Free Movement of Persons) Regulations 2006 and 2008.
The applicant is a Latvian national. He arrived in this State in December, 2002 upon a work permit, which was subsequently renewed. Between 2002 and 2004, he was employed by a food processing plant. In 2004, he found employment with a recruitment service, where he worked for twelve months. He was then employed by a different recruitment service and worked in the construction industry until 2007. He has one dependent son, who was born in Ireland in October, 2005 and from whom he has been estranged for two years as of the time of hearing. The applicant was in a relationship with the child's mother until late 2006. The applicant maintains that he has little emotional connection with Latvia, having only visited for a total of six weeks during the thirteen years he had resided in Ireland, at the time of hearing.
The applicant has struggled with addiction whilst living in the State. He first began using heroin in or around 2007, when he was living in a hostel in the City Centre. He took up residence there because his lack of employment made it impossible to pay rent as it fell due. From 2007 onwards, the applicant came to the adverse attention of Gardai on a significant number of occasions.
On 16th July, 2013, the first-named respondent issued a notice to the applicant, informing him of an intention to make a removal order against him, pursuant to regulation 20(1)(a)(iv) of the 2006 and 2008 Regulations. The first-named respondent noted that the applicant had frequently come to the attention of Gardaí since 2007 and had been convicted of a number of offences in the criminal courts, including drug possession, theft and road traffic offences.
By correspondence dated 6th August, 2013, the applicant made submissions against the issuance of a removal order, pursuant to Schedule 9 of the above Regulations. On 12th August, 2013, the applicant made supplemental submissions in relation to his work permit and his employment record within the State. On 20th November, 2013, the applicant wrote to the first-named respondent, seeking clarification regarding his status within the State at that time. On 6th January, 2014, the first-named respondent replied to the applicant by letter stating that his case remained under consideration in accordance with Regulation 20(1)(a)(iv).
On 6th February, 2014, the applicant wrote to the first-named respondent again, wherein he noted that some six months had elapsed since the proposal for a removal order was made. The applicant requested further clarification regarding the removal order. The applicant further maintained that such a delay, unexplained as it was, constituted a breach of his constitutional rights and Article 41 of the Charter of Fundamental Rights and Freedoms. By correspondence dated 10th February, 2014, the first-named respondent wrote to the applicant, stating that the applicant's case still remained under consideration pursuant to regulation 20(1)(a)(iv).
Further correspondence issued between the applicant and the first-named respondent. On 27th February, 2014, the first-named respondent wrote to the applicant in regard to a conviction for an offence that had not been included in the original proposal. That being the case, the first-named respondent invited further final submissions within seven working days. By correspondence dated 14th April, 2014, the applicant submitted a contract of employment that he had secured with the Community Addiction Programme (CAP Limited), which was part of a drug rehabilitation FÁS community employment scheme. The applicant also noted that nine months had passed since he had first been notified of the proposal. The applicant stated that he was severely prejudiced due to this delay and requested that his case be finalised within ten working days. Failing this, the applicant would pursue the appropriate relief before this Honorable Court.
By letter dated 15th April, 2014, the first-named respondent informed the applicant that a removal order would be issued against him, pursuant to regulation 20 (1)(a)(iv) of the Regulations. This same letter further outlines the logic behind the decision to issue a removal order against the applicant, which reflected the same logic outlined in the proposal to issue the removal order. The letter lists the date of each court appearance made by the applicant, the date and nature of the charge and the sentence imposed where a conviction was secured. The decision to proceed with the removal order stated that it had ' been concluded that [the applicant's] conduct is such that it would be contrary to serious grounds of public policy to permit [him] to remain in the State'. A period of five years' exclusion, running from the date of removal, was also being imposed in accordance with Regulation 20(1)(c) of the Regulations.
The following reliefs are sought by the applicant in these proceedings:-
a. an order of certiorari quashing a decision of the first named respondent's dated 15th April, 2014, to make a removal order in respect of the applicant;
b. a declaration that the State has failed to comply with its obligation to transpose Article 27(2) of Council Directive 2004/38/EC adequately or at all;
c. a further declaration that the 2006 and 2008 regulations are incompatible with Article 27(2) and/or Article 31(2) of Council Directive 2004/38/EC; and
d. an injunction, if required, restraining the first named respondent, his servants or agents from taking any steps to remove the applicant pending determination of proceedings.
The applicant submitted that, under Article 27 (2) of EU Council Directive 2004/38/EC, the issue of expulsion is conditional on the requirement that the personal conduct of the person concerned represents a genuine, present threat affecting one of the fundamental interests of society or the host member state. The applicant argues that, by relying exclusively upon previous criminal convictions in making a removal order against the applicant, the first-named respondent has acted ultra vires and/or in breach of the Directive and/or Regulation 20 of the Regulations.
The applicant argues that Regulation 20(1)(d) of the Regulations allows the first-named respondent to make a removal order on grounds that the person concerned served a custodial sentence and public policy is therefore at issue. It is submitted that this is incompatible with the State's obligations under Article 27(2) of the Directive.
The applicant also maintains that the first-named respondent acted ultra vires by making the decision to issue a removal order against the applicant before concluding that the applicant's personal conduct represented a genuine, present threat affecting one of the fundamental interests of society or of the host Member State.
Further, the applicant argues that, in failing to identify the fundamental interest of society which necessitated the making of a removal order against the applicant, the first-named respondent acted ultra vires, irrationally, disproportionately and/or in breach of Council Directive 2004/38/EC and/or Regulation 20 of the aforementioned Regulations.
The applicant maintains that, in failing to expressly impose a requirement that the...
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