Krupecki v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 July 2018
• Neutral Citation: [2018] IEHC 505
• Docket Number: [2017 No. 1012 J.R.]
• Court: High Court
• Date: 20 July 2018

[2018] IEHC 505

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 1012 J.R.]

BETWEEN

LUKASZ PIOTR KRUPECKI

AND

J.A.M (A MINOR SUING BY HIS FATHER AND NEXT FRIEND LUKASZ PIOTR KRUPECKI)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 1)

Removal order – Exclusion order – Certiorari – Applicants seeking certiorari of a removal order and exclusion order – Whether the exclusion order gave reasons for its duration

Facts: The first applicant, Mr Krupecki, a Polish citizen, came to Ireland on 10th February, 2008. He entered into a relationship with an Irish citizen and they had a child together, the second applicant, born on 3rd March, 2018. The first applicant had five convictions, three for assault causing harm and two for public order offences, dating back to 11th November, 2011. On 12th August, 2013 the Department of Justice and Equality informed the first applicant that it was proposed to make a removal order against him pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). On 27th October, 2016 the first applicant was sentenced to three months' imprisonment with the final six months suspended for assault causing harm. A removal order and an exclusion order were made on 8th May, 2017. The exclusion order required the first applicant to remain outside the State for a three-year period. The first applicant then sought a review of those orders and that was refused on 28th September, 2017. Leave to issue these proceedings was granted on 18th December, 2017. The primary relief sought was certiorari of the review decision and of the original removal order and exclusion order. The first applicant submitted that neither the exclusion order nor the accompanying analysis gave reasons for having selected three years as the duration of the exclusion order; nor indeed had the respondent, the Minister for Justice and Equality, given such reasons subsequently.

Held by the High Court (Humphreys J) that applying the Court of Appeal judgment in Balc v Minister for Justice and Equality [2018] IECA 76 at paras. 123 to 127 would mean that reasons should be provided; the issue then arose as to whether a decision such as this, which lacks reasons, should be quashed or whether the challenge should be adjourned pending the decision-maker being directed to give fresh reasons. The applicants requested that, if this became an issue, a short period might be afforded to make further submissions on this heading, an application which Humphreys J was prepared to consider favourably in the circumstances.

Humphreys J held that the proceedings would be dismissed, other than relief G2 on ground H3, and that those elements of the case would be adjourned to Monday 23rd July, 2018 for further submissions.

Proceedings adjourned.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of July, 2018

1 The first-named applicant is a Polish citizen born in 1993. He came to Ireland on 10th February, 2008. A number of other family members live in the State. He entered into a relationship with an Irish citizen and they had a child together, who is the second-named applicant, born on 3rd March, 2018. The relationship broke down but the first-named applicant says that he remains on good terms with the mother and, at least prior to his imprisonment, played an active role in the child's life.

2 The first-named applicant has five convictions, three for assault causing harm and two for public order offences. These date back to 11th November, 2011. On 12th August, 2013 the Department of Justice and Equality informed the first-named applicant that it was proposed to make a removal order against him pursuant to the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015).

3 On 27th October, 2016 the first-named applicant was sentenced to three months' imprisonment with the final six months suspended for assault causing harm and is currently serving that sentence in Castlerea Prison. A removal order and an exclusion order were made on 8th May, 2017. The exclusion order requires the first-named applicant to remain outside the State for a three-year period. The first-named applicant then sought a review of those orders and that was refused on 28th September, 2017.

4 Leave to issue the proceedings was granted on 18th December, 2017. The primary relief sought is certiorari of the review decision and of the original removal order and exclusion order. Through oversight, the applicants' lawyers failed to appropriately follow up the perfection of the leave order, a situation that also occurred in R.B. (Bangladesh) v. Minister for Justice and Equality [2018] IEHC 336 [2018] 4 JIC 2410 (Unreported, High Court, 24th April, 2018) (under appeal).

5 For some reason not currently apparent to me, there is no record in the High Court system of leave having been granted, although I accept that that is a recording error and I accept the information presented to me that it was so granted. The applicants' solicitors' town agents apparently sought the order simply by calling in to the Central Office, but that is not an adequate procedure: see High Court Practice Direction No. 78 at para. 20(a), which requires applicants' solicitors to email the statement of grounds to the asylum, immigration and citizenship registrar following the grant of leave. It does not appear that any correspondence was issued to the registrar seeking the order and certainly nobody drew it to my attention until the substantive hearing date. While no...