IS (Lithuania) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] IEHC 431 |
| Court | High Court |
| Docket Number | [2015 No. 462 J.R.] |
| Date | 22 July 2016 |
[2016] IEHC 431
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
[2015 No. 462 J.R.]
AND
Asylum, Immigration & Nationality – Conviction under s. 13(1) and (3) of the Criminal Justice (Theft and Fraud) Offences Act, 2001 – Violation of Directive 2004/38/EC – Reg. 12 of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 – Fair procedures Art. 8 of European Convention of Human Rights (ECHR)
Facts: The applicant sought an order of certiorari for quashing a removal order issued by the first named respondent against the applicant. The applicant contended that the statement in the said removal order to the effect that the Garda Immigration National Bureau (GNIB) was of the opinion that the applicant possessed a serious threat to the social order and interest of the Irish society was a material factual error as the GNIB had never expressed that view. The applicant also contended that since his another personal injuries claim against the Irish Prison Service would came for hearing within the exclusion period, there would be denial to his right to access of courts. The applicant also alleged contravention of art. 8 of ECHR as there would be infringement of his family rights by the impugned expulsion order. The respondent argued that the decision to remove him was formed owing to the conviction of the applicant under s. 13(1) and (3) of the Criminal Justice (Theft and Fraud) Offences Act, 2001.
Ms. Justice Stewart granted an order of certiorari, thereby quashed the decision of the first named respondent on the sole ground that there was a breach of art. 8 of ECHR. The Court, in line with the dicta of the European Court of Human Rights' Grand Chamber in the case of Maslov v. Austria [2009] I.N.L.R. 47, held that the decision-maker should have enquired what effect, if any, the impugned removal order would have on the family rights of the applicant under art. 8 of ECHR. The Court held that since the decision-maker was aware of the injuries sustained by the applicant during the period of imprisonment and the need for family care for recuperation, it was imperative for the decision-maker to ascertain whether there was a disproportionate interference in the family life of the applicant by the said removal order.
This is an application by way of judicial review seeking, inter alia, an order of certiorari quashing a removal order issued by the first-named respondent against the applicant. The proceedings are moved on the applicant's Notice of Motion dated 31st July, 2015, and grounded upon an affidavit of the same date.
The applicant is a Lithuanian national, who was 25 years old at the time the first-named respondent issued a removal order and a five-year exclusion order against him. The applicant arrived in this State in January, 2006 with his parents and two brothers. There appears to be a discrepancy between the applicant's solicitors and the Garda National Immigration Bureau (GNIB) on the precise date of arrival in this State. The order was allegedly made against the applicant due to his criminal behaviour within this State being adjudged ' a genuine and sufficient threat to the social order and the fundamental interests of Irish society.' The first-named respondent notified the applicant of the intention to make a removal order with a five-year exclusion period on 20th May, 2014.
The applicant was convicted on 26th October, 2012, in the Circuit Court sitting at Portlaoise for aggravated burglary, contrary to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud) Offences Act, 2001. The Court imposed a six year sentence with the final two years suspended. The applicant maintains that he is entitled to permanent residence under the provisions of Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J. L158 30. 4.2004 and Regulation 12 of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006.
By letter dated 27th July, 2015, the first-named respondent wrote to the GNIB stating that the applicant's file had been reviewed and that the removal order and subsequent period of exclusion from the State were deemed necessary. This letter signified that the first-named respondent was effectively handing the matter over to officers of the GNIB to execute the order.
The applicant also had prior convictions, including unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977 (as amended). On 18th November, 2010, the applicant was convicted for driving without reasonable consideration. The applicant was released from prison on 25th October, 2015. All fines imposed by the sentencing court were paid by the applicant.
On 31st July, 2015, MacEochaidh J. granted the applicant leave to apply for judicial review. The application was made on an ex parte basis. MacEochaidh J.'s order restrained the first-named respondent from executing the removal order and interfering with the applicant's right to reside in the State up to and including 5th August, 2015. The applicant was also granted short service leave to issue a Notice of Motion specifying the reliefs sought, made returnable for 5th August, 2015.
On 6th August, 2015, this Court ordered that the time to make this application be extended and that an originating Notice of Motion be returnable for 12th October, 2015. A Statement of Opposition was sent to the applicant from the respondents dated 27th November, 2015 and grounded upon an affidavit of an official at the GNIB.
Mr. Lynn, S.C., along with Mr. Ó Maolchalain, B.L., submit on behalf of the applicant that the respondents' decision was materially flawed due to an error in the review relied upon by the respondent. The applicant states that the error is located at pg. 8 of the decision, in the section that states:-
'The outcome of Mr. S's serious criminal conduct in Ireland is the [GNIB] are of the view that he is a genuine and sufficient threat to the social order and fundamental interests of Irish society and as such, they apply to this Department to have a removal order made in respect of him.'
The applicant contends that the GNIB never expressed a view as to whether or not the applicant was a ' genuine and sufficient threat to the social order and fundamental interests of Irish society' in its communications with the first-named respondent.
The applicant contests the respondents' reliance upon the decision in Kugathas v. Secretary of State for the Home Department [2003] EWCA Civ 31 as a basis for finding that '...family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties.' With particular reference to Mr. [S's] particular situation, I do not find that his circumstances suggest anything more than 'normal emotional ties.'' The applicant asserts that the first-named respondent's adoption of the decision in Kugathas is an error in law.
The applicant further submits that a different test ought to be applied in relation to Directive 2004/38/EC. According to the applicant, this legislation outlines that a Member State may not make an expulsion decision against a Union citizen who possesses the right to permanently reside on its territory, except on ' serious grounds of public policy or public security'. The applicant argues that the GNIB did not express a view as to whether or not the applicant fell within this category of persons. The applicant asserts that the first-named respondent had regard to irrelevant matters when deciding to issue the removal order, which constitutes a material error of fact.
Attention is also drawn to para. 6 of the affidavit of a Principal Officer within the Irish National and Immigration Service, which avers to the situation that:-
'...the statement that the [GNIB] held the view the applicant was a 'genuine and sufficient threat to the social order and the fundamental interests of our society' was only one of a large number of issues considered by the first respondent before concluding that 'therefore exist as substantial reasons associated with the common good and serious grounds of public policy which require the removal of Mr. S from the State'.'
During the applicant's time in custody, he suffered very serious head injuries, for which he is seeking redress in a personal injuries action against the Irish Prison Service. The applicant contends that his pursuit of this action would be severely compromised if he were excluded from the State. The applicant contends that his personal injuries claim will be heard within the period of his exclusion order, as the Personal Injuries Assessment Board (PIAB) has already issued an authorisation in relation to the applicant's case. This ground is termed broadly by the applicant as a denial to his right to access the courts.
Further to the applicant's claim that the respondent failed to assess the opinion of the GNIB correctly, there is also an alleged failure to appropriately consider whether the applicant's circumstances signified something more than normal emotional ties to his family, who moved to Ireland with the applicant in 2006.
The impugned decision cites the Kugathas decision, in which it was stated that '...family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal.' The review decision summarised that '...[W] ith reference to Mr. [S's] ...
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