J.B. v The Minister for Justice and Equality

CourtHigh Court
JudgeMr Justice Keane
Judgment Date28 June 2019
Neutral Citation[2019] IEHC 470
Docket Number[2016 No. 803 JR]
Date28 June 2019

[2019] IEHC 470



Keane J.

[2016 No. 803 JR]




Judicial review – Removal order – Propensity to reoffend – Applicant seeking an order of certiorari quashing a decision made by the respondent affirming a removal order – Whether there was evidence upon which to base the finding that the applicant had a propensity to reoffend

Facts: The applicant challenged a decision made by the first respondent, the Minister for Justice and Equality, on 4 October 2016, affirming a removal order, made on 17 December 2014, against the applicant, a Polish national and, hence, European Union citizen, imposing upon him an exclusion period of five years, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (the review decision). By order made on 6 February 2017, 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; (ii) a declaration that the 2006 Regulations or the European Union (Free Movement of Persons) Regulations 2015, or both, are in breach of European Union law in failing to implement Directive 2004/38/EC (the Citizens’ Rights Directive) correctly by failing to provide the applicant with a right of appeal that is full, independent and compliant with Art. 31 of that Directive and Art. 47 of the Charter of Fundamental Rights of the European Union (CFREU). The applicant submitted that there was no evidence upon which to base the finding that he had a propensity to reoffend and, what is more, that the finding ran counter to certain comments of the trial judge who sentenced him. The applicant alleged that a passage in the review decision wrongly mischaracterised his criminal conduct as that of rape, rather than sexual assault. The applicant complained that the Minister drew an unfair and erroneous inference in the review decision concerning the circumstances of his return to Poland shortly after he committed a sexual assault in 2006, by concluding that they raised a serious question concerning whether he would have voluntarily returned to the State to face prosecution for that offence in 2012, had he not been made the subject of a European Arrest Warrant. The applicant submitted that the review decision failed the test of proportionality and that, in making it, the Minister applied the wrong test. The applicant asserted that the Minister’s decision was invalid because it failed to give reasons for fixing an exclusion period of five years as a proportionate measure in all of the circumstances of the applicant’s case.

Held by the High Court (Keane J) that it rejected the argument that the State had failed to properly transpose or implement the procedural safeguards of Art. 31 of the Citizens’ Rights Directive or that the State was in breach of the requirements of Art. 47 of the CFREU in that respect. Keane J held that it does not follow that, in accepting that a convicted person has been otherwise of good character, both before and after a particular offence, the sentencing court is purporting to assess that person’s propensity to engage in future criminal conduct. Keane J held that, while the review decision acknowledged the terms of the complaint recorded in the Garda report, it evinced no misunderstanding concerning the verdict of the jury and, hence, concerning the nature and extent of the criminal conduct engaged in by the applicant. Keane J was satisfied that the relevant inference was one that it was perfectly open to the Minister to draw. Keane J rejected the argument that the Minister applied the wrong test or that the Minister failed to properly apply the necessary proportionality assessment under Art. 27(2) of the Citizens’ Rights Directive. Keane J concluded that the Minister’s objection to the introduction of a ‘no reasons’ argument in the applicant’s written and oral submissions that he had not applied for, and had not been granted, leave to raise as a ground of challenge to the review decision was a well-founded one and he was satisfied that it would be inappropriate to consider that argument.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice Keane delivered on the 28th June 2019

This is a challenge to a decision made by the Minister for Justice and Equality (“the Minister”) on 4 October 2016, affirming a removal order, made on 17 December 2014, against the applicant, a Polish national and, hence, European Union citizen, imposing upon him an exclusion period of five years, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (“the 2006 Regulations”). For ease of reference, I will refer to the decision of 4 October 2016 as “the review decision.”


While the review decision was made after the revocation of the 2006 Regulations by European Union (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), which came into operation on 1 February 2016, the applicant sought that review, through his solicitors, on 2 January 2015, and, under the transitional provision of Reg. 31(28) of the 2015 Regulations, the review provisions of Reg. 21 of the 2006 Regulations continue to apply in those circumstances.


The 2006 Regulations, and the 2015 Regulations which succeeded them, were each 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's criminal conduct

The applicant was born in 1981. He came to Ireland in 2005 but returned to Poland in 2006, shortly after he came to the attention of An Garda Síochána on 6 August 2006 when a sexual offence complaint was made against him.


The criminal complaint was as follows. On 5 August 2006 a number of Polish nationals were socialising at a house in Dublin. In the early hours of 6 August 2006, the female injured party went to sleep on a couch in the front sitting room, while the others remained in the kitchen at the rear of the house. She awoke to find that her jeans and underwear had been removed and that the applicant was on top of her. The injured party became alarmed and the applicant stopped what he was doing. The injured party called out to her boyfriend, who was still in the kitchen. The injured party and her boyfriend left the house shortly afterwards and contacted the Gardaí. The applicant was promptly arrested and detained for questioning. He was then released, pending the preparation of an investigation file for the Director of Public Prosecutions. A short time later, he returned to Poland.


In 2012, a European Arrest Warrant issued against him. He returned to Ireland voluntarily in September 2012. On 5 December 2013, he appeared before the Central Criminal Court charged with two offences arising out of that incident; rape, contrary to common law, and sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The jury acquitted him of rape, convicting him instead of sexual assault. On 18 December 2013, the applicant was sentenced to two years imprisonment to run from the 26 November 2013, with the last six months suspended. He was due for release on 8 January 2015.


In imposing that sentence, the Court acknowledged that the applicant had been otherwise a person of good character (that is to say, a person without other recorded convictions), both before and after the commission of that crime.

The removal order against the first applicant

On 6 February 2014, through the Irish Naturalisation and Immigration Service (“INIS”), the Minister wrote to the applicant to inform him of the Minister's proposal to make a removal order against him, under the power to do so conferred by Reg. 20(1)(a)(iv) of the 2006 Regulations where “in the opinion of the Minister, the conduct or activity of the person is such that it would be contrary to public policy or it would endanger public security or public health to permit the person to remain in the State.” The conduct identified was the sexual assault that the applicant committed on 6 August 2006, as evidenced by his conviction and sentence for that offence in 2013. The letter went on to inform the applicant that the Minister was also proposing to impose a period of exclusion from the State of five years upon him, in accordance with Reg. 20(1)(c) of the 2006 Regulations.


Through his solicitor, the applicant made representations against that proposal on 26 February and 8 July 2014.


Having considered those representations, the Minister nonetheless made a removal order against the applicant on 18 December 2014. That order was based upon a five page “examination of file” report and recommendation, made by an officer of the Minister on the same date.


On 2 January 2015, through his solicitor, the applicant requested a review of the decision to make that order, making further representations in support of that review on 20 January 2015.


On 20 April 2015, the decision to make a removal order against the applicant, incorporating an exclusion period of five years, was affirmed, based upon a further ten page “examination of file” report and recommendation of the same date.


The applicant brought judicial review proceedings to challenge that decision on 7 May 2015. Those proceedings were listed for hearing on 21 January 2016, but were compromised on terms that included the withdrawal of that decision and the consideration of further representations by the applicant in the context of a further review.

The decision now under challenge

At the conclusion of that review on 4 October 2016, the Minister reaffirmed the decision to make the original removal order, incorporating...

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1 cases
  • J.B. v The Minister for Justice and Equality, The Attorney General and Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 7 Abril 2022
    ...was in turn the subject of judicial review proceedings in the High Court. The judgment of the High Court delivered on 28 June 2019 ([2019] IEHC 470) in those proceedings was the subject of an appeal to the Court of Appeal. The High Court judgment rejected the challenge to the review decisio......

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