Kovalenko (A Minor) v Min for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date12 Dec 2014
Neutral Citation[2014] IEHC 624

[2014] IEHC 624

THE HIGH COURT

[No. 612 J.R./2013]
Kovalenko v Min for Justice & Ors

BETWEEN

JUDICIAL REVIEW
JANA KOVALENKO, DENISS KOVALENKO AND DANIEL KOVALENKO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, JANA KOVALENKO)
APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) AMDT ACT 1990 S21

CRIMINAL LAW (RAPE) AMDT ACT 1990 S4

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 20(1)(A)(IV)

SEX OFFENDERS ACT 2001

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 21(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 SCHED 9

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 20

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 SCHED 11

BONSIGNORE v OBERSTADTDIREKTOR DER STADT KÖLN 1975 ECR 297 1975 1 CMLR 472 (CASE 67/74)

RUTILI v MIN FOR THE INTERIOR 1975 ECR 1219 1976 1 CMLR 140 (CASE 36/75)

ADOUI v BELGIUM 1982 ECR 1665 1982 3 CMLR 631 (CASE 115/81)

NAZLI v STADT NÜRNBERG (CASE C-340/97) 2000 ECR I-957 2000 AER (D) 165

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 21

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 2

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 2 ART 18

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 2 ART 20

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 2 ART 21

EEC DIR 38/2004 RECITAL 23

IMMIGRATION ACT 1999 S3

DPP v ALEXIOU 2003 3 IR 513 2003/13/2830

EEC DIR 38/2004 CHAP VI ART 27

EEC DIR 38/2004 CHAP VI ART 28

EEC DIR 38/2004 CHAP VI ART 29

EEC DIR 38/2004 CHAP VI ART 30

EEC DIR 38/2004 CHAP VI ART 31

EEC DIR 38/2004 CHAP VI ART 32

EEC DIR 38/2004 CHAP VI ART 33

EEC DIR 38/2004 CHAP VI ART 27(1)

EEC DIR 38/2004 CHAP VI ART 27(2)

EEC DIR 38/2004 ART 16

ONUEKWERE v SECRETARY OF STATE FOR THE HOME DEPT 2014 1 WLR 2420 2014 2 CMLR 46 2014 CEC 1007 2014 IMM AR 551 2014 INLR 613

EEC DIR 38/2004 CHAP VI ART 28(2)

EEC DIR 38/2004 CHAP VI ART 28(1)

EEC DIR 38/2004 CHAP VI ART 30(1)

EEC DIR 38/2004 CHAP VI ART 30(2)

EEC DIR 38/2004 CHAP VI ART 30(3)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(C)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(1)(D)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(2)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(3)(A)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(3)(B)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(3)(C)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(3)(D)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(3)(E)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 4(A)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 20(6)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 21

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 23

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO. 2) REGS 2006 SI 656/2006 REG 12

DPP, PEOPLE v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155 1988/4/1067

R v BOUCHEREAU (PIERRE ROGER) 1978 QB 732 1978 2 WLR 250 1981 2 AER 924 1977 ECR 1999 1978 66 CAR 202 1977 2 CMLR 800

EEC DIR 221/1964 ART 3(2)

VAN DUYN v HOME OFFICE 1975 CH 358 1975 2 WLR 760 1975 3 AER 190 1974 ECR 133 1975 1 CMLR 1

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 48

LAND BADEN-WURTTEMBERG v TSAKOURIDIS 2013 AER (EC) 183 2010 AER (D) 247 (NOV) 2010 ECR I-11979 (CASE C-145/09)

ORFANOPOULOS & OLIVERI v LAND BADEN-WURTTEMBERG 2004 ECR I-5257 2005 1 CMLR 18 (CASES C-482/01 & C-493/01)

PRISON RULES 2007 SI 252/2007

N v REFUGEE APPLICATION CMSR UNREP WHITE 23.7.2003 [TRANSCRIPT NOT AVAILABLE]

M v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 [TRANSCRIPT NOT AVAILABLE]

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 7.4.2006 2006/46/9902006 IEHC 113

DUBLIN WELL WOMAN CENTRE LTD v IRELAND 1995 1 ILRM 408 1994/9/2704

O'NEILL v IRISH HEREFORD BREED SOCIETY LTD 1992 1 IR 431 1991 ILRM 612

PRENDIVILLE & MURPHY v MEDICAL COUNCIL 2008 3 IR 122 2007/51/10911 2007 IEHC 427

Immigration - Criminal conviction - Sentence - EU citizen - Removal from State - Removal order challenged - Exclusion order - Seriousness of offence - Interference with Article 8 European Convention on Human Rights - Legitimate aim of State in the prevention of crime and disorder - Judicial review of decision - Fair procedures

Facts The second-named applicant, a Latvian national, was convicted of rape contrary to s. 48 Offences against the Persons Act 1861 and s.2 Criminal Law (Rape) Act 1981. He was sentenced to seven years imprisonment. He was released on 30 May 2011. The second-named applicant had been living in Ireland since December 2003. In August 2005 he married the first-named applicant who arrived in Ireland in 2004. They conceived a child, the third-named applicant, who was born in the State on 19 February 2006. They are all European Union citizens. In January 2013, the second-named applicant was informed of a proposal to issue a removal order against him in accordance with the European Communities (Free Movement of Persons) Regulations 2006 and 2008. The application for removal noted the applicant"s convictions and sentence and that he was subject to the provisions of the Sex Offenders Act 2001 for an indefinite period. It was said, owing to his conduct, that it would be contrary to public policy to permit the second-named applicant to remain in the State. The Minister proposed removing him subject to an exclusion period, in other words, preventing him from entering Ireland for a period of ten years. It was accepted that his removal would constitute an interference with his right to respect for private life under Article 8 European Convention on Human Rights, however, it was noted that his removal was in accordance with Irish Law under Regulation 20, in that there was a pressing need and a legitimate aim of the State in the prevention of disorder and crime. Thus, the removal was deemed proportionate and reasonable. The second-named applicant sought a review of the decision. He was granted leave to apply for judicial review. The orders were challenged on the grounds that the decision was based solely on a previous conviction "arising out of a single incident" and on the grounds that the Minister failed to consider whether the personal conduct of the applicant represented a genuine, present and sufficiently serious threat affecting the interests of society.

Held The judge concluded the decision was within the scope of public policy contemplated and was clearly based on the personal conduct of the individual concerned. The Minister acknowledged that it was a single incident but concluded that this did not detract from the seriousness of the offence and the threat the nature of the offences posed to the citizens and residents of the State. The judge emphasised that there was no sign of remorse or expression of regret for the offences which he committed in the removal proceedings. He merely stated that he was "aware of the seriousness of his crime and has cooperated fully with probation supervision and is determined to fully rehabilitate himself". The judge acknowledged that there was a breach of fair procedures. The Minister had an obligation to disclose to the applicant the material which had been obtained from the Irish Prison Service. The applicant was thereby deprived of an opportunity to make any submissions or offer any explanation in relation to the matters which were relied upon to his detriment. Thus, the judge said the order was fundamentally flawed for that reason.

-The judge had no option but to quash the decision of 17 June 2013 affirming the removal and exclusion order made against him. The review remained to be concluded.

1

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of December, 2014

2

1. The second named applicant is a Latvian national, and on 26 th June, 2006, was convicted of rape contrary to s. 48 of the Offences Against the Person Act 1861, and s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) Amendment Act 1990, and sentenced to a period of imprisonment of seven years. On the same date he was convicted of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990, and was sentenced to a concurrent term of seven years imprisonment. He was released from prison on or about 30 th May, 2011.

3

2. The second applicant had been living in the State since December, 2003. On 19 th August, 2005, he married the first named applicant, who arrived in Ireland on 1 st April, 2004. Since then the couple lived together in Ireland until the second applicant's removal from the state on 18 th June, 2013. They have one child, the third named applicant, born in Ireland on 19 th February, 2006. The applicants are citizens of the European Union.

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8 cases
  • M.v (Lithuania) v Minister for Justice and Equality
    • Ireland
    • High Court
    • 22 July 2016
    ...I have no hesitance in rejecting that argument. 54 The decisions of McDermott J. in Kovalenko v. Minister for Justice and Equality [2014] IEHC 624 and P.R. v. Minister for Justice [2015] IEHC 201 are instructive, but distinguishable, from the present case due to the gravity of the offence......
  • Voivod v The Minister for Justice and Equality
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    • 19 November 2018
    ...in the social order that he be removed and excluded from Ireland. 6 The court does not accept that Kovalenko v. Minister for Justice [2014] IEHC 624, because it refers to certain failures additional to the conduct underpinning Mr Kovalenko's convictions, supports the proposition that the M......
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    • Ireland
    • Court of Appeal (Ireland)
    • 24 July 2019
    ...of public policy. 25 The appellant refers to two judgments of McDermott J., Kovalenko v. The Minster for Justice and Equality [2014] I.E.H.C. 624 (which in turn considered the dicta of the CJEU in R. v. Bouchereau [1977] E.C.R. 1999) and D.S. v. The Minister for Justice and Equality [2015......
  • GC v Minister for Justice and Equality
    • Ireland
    • High Court
    • 4 April 2017
    ...law. 17 The applicant also refers to two judgments of McDermott J. in Kovalenko & Ors v. The Minister for Justice & Ors [2014] IEHC 624 and D.S. v. The Minister for Justice and Equality [2015] IEHC 643. Both of those cases concerned an offence of rape. In the former judgment McDer......
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