J.B. v The Minister for Justice and Equality, The Attorney General and Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 07 April 2022 |
| Neutral Citation | [2022] IECA 89 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/372 |
[2022] IECA 89
Ní Raifeartaigh J.
Power J.
O'Connor J.
Record Number: 2019/372
High Court Record Number: 2016/803JR
THE COURT OF APPEAL
Civil
Removal order – European Union citizen – Article 27 of the 2004 Citizens’ Rights Directive – Appellant challenging review decision affirming removal order – Whether the way the decision-maker approached the question of removal of the appellant from the State was adequate and proportionate
Facts: The appellant, following a conviction for sexual assault, was the subject of a removal order and a subsequent five-year exclusion order by the first respondent, the Minister for Justice and Equality, in December 2014. The removal order was the subject of an unsuccessful review in 2016, which 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 decision issued in October 2016 which had affirmed the removal order made in 2014. The grounds of appeal included complaints that the trial judge had failed to condemn the 2016 review decision on the basis that: (i) the decision-maker had failed to engage properly with the requirement in Article 27 of the 2004 Citizens’ Rights Directive that the person must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”; (ii) there was no evidential foundation for the finding of a future risk of re-offending; (iii) the correct test had not been applied; and (iv) a proportionality assessment had not been carried out properly in accordance with the 2004 Citizens’ Rights Directive. Complaint was also made about how the trial judge: (i) dealt with the remarks of the sentencing judge which had not been queried or rejected by the Minister; (ii) described the evidence of the appellant returning to the home State as “unsworn and uncorroborated” in view of the appellant’s affidavit which had been served on the Minister before the contested decision; (iii) speculated about the distinctions made by the jury when acquitting the appellant of rape and delivering a verdict of sexual assault; and (iv) determined the allegation concerning the return to the home State of the appellant, particularly having regard to the uncontradicted affidavit evidence of the appellant. The notice of appeal also claimed that the “egregious hardship” test applied by the judge was wrong in law. A further ground of appeal was that the trial judge erroneously equated the proportionality test in a “removal case” with that to be carried out in an Article 8 of the European Convention of Human Rights immigration case. A separate ground of appeal was that the trial judge erred when holding that the appellate/review mechanisms available to the appellant were compliant with EU law (particularly Article 47 of the Charter of Fundamental Rights) and that there had been a failure to transpose the 2004 Citizens’ Rights Directive in that regard.
Held by O'Connor J that, given the fundamental nature of the right to freedom of movement for European Union citizens, the analyses of the various matters which were relevant to the assessment in question were superficial and cursory and contained errors having regard to the principles to be applied. O’Connor J held that the trial judge erred in law in determining that the way the decision-maker had approached the question of removal of the appellant from the State was adequate and proportionate. O’Connor J held that he would therefore quash the 2016 review decision.
O'Connor J proposed that the Court grant certiorari of the 2016 review decision. The Court would not make final orders until it had heard from the parties in relation to the question of remittal, the appropriate final orders to be made and whether the parties wished to make detailed submissions about the issue of compliance with Articles 30 and 31 of the 2004 Citizens’ Rights Directive; also, the issue of costs had yet to be determined.
Appeal allowed.
| INTRODUCTION | - 3 - |
| REDACTION/ANONYMITY | - 3 - |
| OUTLINE OF RELEVANT LEGAL FRAMEWORK | - 3 - |
| The 2004 Directive | - 4 - |
| The 2006 Regulations | - 5 - |
| CHRONOLOGICAL SUMMARY OF RELEVANT CIRCUMSTANCES | - 5 - |
| MOOTNESS | - 10 - |
| The submissions of the parties on mootness | - 11 - |
| Decision on mootness | - 12 - |
| TRIAL JUDGE'S JUDGMENT ON THE SUBSTANTIVE ISSUES | - 13 - |
| GROUNDS OF APPEAL | - 15 - |
| ISSUES FOR CONSIDERATION IN THIS APPEAL | - 16 - |
| 1ST ISSUE: THE PROPORTIONALITY ASSESSMENT | - 16 - |
| The Submissions of the Parties | - 16 - |
| Appellant | - 16 - |
| Respondents | - 18 - |
| The Court's Consideration of first issue (proportionality) | - 18 - |
| Application of general principles to the appellant's case | - 23 - |
| The specific nature of the offence committed | - 23 - |
| Propensity to re-offend | - 24 - |
| Up-to-date position on propensity to re-offend at time of 2016 Review | - 25 - |
| Other personal and family circumstances | - 25 - |
| The inference which was drawn from the appellant's return to home state | - 27 - |
| Authorities relied upon by respondents | - 27 - |
| Conclusion on Proportionality | - 30 - |
| 2ND ISSUE: THE RIGHT TO AN EFFECTIVE REMEDY UNDER ARTICLE 47 OF CFREU AND COMPLIANCE WITH ARTICLES 30 AND 31 OF THE CITIZENS' RIGHTS DIRECTIVE. | - 30 - |
| FINAL ORDERS AND THE QUESTION OF REMITTAL | - 32 - |
JUDGMENT delivered by Mr. Justice Tony O'Connor on 7 April 2022
. This appeal concerns the right of a European Union citizen to reside in another Member State (Ireland in this appeal), and specifically, the question of the expulsion of such a person pursuant to Article 27 of the 2004 Citizens' Rights Directive. Following a conviction for sexual assault the appellant was the subject of a removal order and a subsequent five-year exclusion order by the Minister for Justice and Equality (“ the Minister”) in December 2014. The letter addressed to the appellant stated: “It has been concluded that your conduct is such that it would be contrary to public policy to permit you to remain in the State.” The removal order was the subject of an unsuccessful review in 2016, which 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 is the subject of this appeal. The High Court judgment rejected the challenge to the review decision issued in October 2016 (“ the 2016 review decision”) which had affirmed the removal order made in 2014.
. It is worth keeping the following questions in mind when trying to ascertain the degree of scrutiny required for the making of an expulsion order and particularly in the case of the appellant: (i) How does one assess whether a removal order is proportionate? (ii) To what extent is the conduct of a person investigated before making an exclusion order? (iii) What is the degree of consideration afforded to the effect of an exclusion order on an individual and the family of that individual? (iv) What is the effect of the different tests mandated for the different categories of European Citizens which depend on length of stay in the State?
. Following the granting of leave to issue judicial leave proceedings, Humphreys J. on 26 October 2016 directed that the judicial review pleadings be redacted, and he prohibited publication or broadcast of any matter which could identify any non-professional person referred to in these proceedings. Despite the submissions from the respondents that the appellant's identity ought not to be protected given the imperative of Art. 34.1 of the Constitution, Humphreys J. on 6 February 2017 ordered that nothing be reported which would give rise to identifying the appellant. Notwithstanding the renewed opposition from the respondents, the trial judge at the substantive hearing in February 2018 did not alter the anonymising initials for the appellant. The respondents did not appeal those orders of Humphreys J. Therefore, this Court will protect the anonymity of all non-professionals in this judgment.
. The substantive legislative provisions which form the relevant background to this appeal are the provisions of the Directive 2004\38\EC of the EU Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“ the 2004 Citizens' Rights Directive”). Article 6 provides for a right of residence for up to three months, while Article 7 deals with the right of residence for more than three months.
. Chapter VI concerns “restrictions on the right of entry and right of residence on grounds of public policy, public security or public health”. Article 27 (1) and (2) provide:
“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a...
To continue reading
Request your trial