Krupecki v The Minister for Justice and Equality No.2

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date01 Oct 2018
Neutral Citation[2018] IEHC 538
Docket Number[2017 No. 1012 JR],[2017 No. 1012 J.R.]

[2018] IEHC 538

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. 2)

Judicial review – Exclusion order – Remedy – Applicant seeking judicial review of removal and exclusion orders made by the respondent – Whether the High Court should quash the respondent's decision or adjourn the challenge to the decision and direct the respondent to state reasons for that decision

Facts: The High Court (Humphreys J), in Krupecki v Minister for Justice and Equality (No. 1) [2018] IEHC 505 (Unreported, High Court, 20th July, 2018) dismissed a judicial review application directed to removal and exclusion orders against the first applicant, Mr Krupecki, save as to a point regarding a lack of reasons in the exclusion order, and held that, on that point, the respondent, the Minister for Justice and Equality, had failed to provide such reasons. At issue was the appropriate remedy for that finding. Humphreys J delivered an ex tempore judgment on 23rd July, 2018 on that issue and took the opportunity to give lengthier written reasons. The essential question was whether to quash the decision or alternatively to adjourn the challenge to the decision and in the meantime to direct the Minister to state reasons for that decision.

Held by Humphreys J that the court had a discretion as to what order was appropriate in a context where reasons were lacking. He held that the balance of justice was significantly in favour of requiring the Minister to furnish express reasons and adjourning the challenge until that was done rather than quashing the decision. In all the circumstances it seemed reasonable to Humphreys J to allow the applicant to have an opportunity to request the Minister to undertake a review on his own initiative.

Humphreys J held that the appropriate order was as follows: (i) an order requiring the Minister to give reasons for the three-year exclusion period in the exclusion order; (ii) an order directing the Minister to inform the applicant when giving those reasons as to whether they were the Minister's reasons at the time when the exclusion order was made; (iii) an order adjourning the application for relief G point 2 on ground H point 3, that is certiorari of the exclusion order due to absence of reasons, to a time to be fixed; and (iv) an order giving directions, which he would canvass with counsel, regarding the timescale for that process and regarding any application to the Minister to exercise his power under reg. 23(9)(b) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015).

Judgment approved.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of October, 2018
1

In Krupecki v. Minister for Justice and Equality (No. 1) [2018] IEHC 505 (Unreported, High Court, 20th July, 2018) I dismissed a judicial review application directed to removal and exclusion orders against the first-named applicant save as to a point regarding a lack of reasons in the exclusion order, and held that, on that point, the Minister had failed to provide such reasons. The issue now is the appropriate remedy for that finding. I delivered an ex tempore judgment on 23rd July, 2018 on that issue and now take the opportunity to give lengthier written reasons.

2

I have received helpful submissions from Mr. Michael Lynn S.C. (with Mr. Paul George Gunning B.L.), for the applicants and from Mr. Anthony Moore B.L. for the respondent.

3

The essential question is whether to quash the decision or alternatively to adjourn the challenge to the decision and in the meantime to direct the Minister to state reasons for that decision. I will consider the arguments for and against in sequence.

Considerations in favour of quashing the decision
4

The arguments in favour of a simple order quashing the decision are as follows.

Constitutional importance of reasons
5

The applicants rely on the fact that reasons derive not merely from the Minister's common law duty, but also from the right to fair procedures under Article 40.3 of the Constitution. That is reinforced by the EU Charter of Fundamental Rights and the ECHR (as applied by the European Convention on Human Rights Act 2003). However, that does not mean that the right to reasons, or indeed any right, is to be interpreted in an inflexible manner. Rights are, in general, subject to and qualified by duties, by the rights of others, by social order and by public interest considerations. It is not necessarily conducive to the smooth operation of a statutory scheme by the executive branch of government if decisions are quashed outright where more proportionate options are available to the court, such as directing reasons.

The decision in Balc
6

Mr. Lynn relies on the similar finding in regard to the absence of reasons made by the Court of Appeal in Balc v. Minister for Justice and Equality [2018] IECA 76 (Unreported, Court of Appeal, 7th March, 2018), which resulted in that court quashing the decision in question. It seems to me that that approach is not decisive in the present case for the simple reason that the Court of Appeal was not asked to make the alternative order of directing reasons as opposed to quashing the decision. The doctrine that a point not argued is a point not decided ( The State (Quinn) v. Ryan [1965] I.R. 70 at 120) applies here.

Submissions that the statute requires reasons
7

Mr. Lynn submits that there is a heightened obligation to set out reasons where that is a specific obligation under the statutory scheme in question. He submits that this is such a scheme and in those circumstances the court should be very slow to give the Minister an opportunity to state reasons save in exceptional circumstances. Regulation 23(1) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) gives the Minister jurisdiction to make an exclusion order in respect of a person who, in the Minister's opinion, poses a danger to public policy or public security for reasons specified in that provision. Regulation 23(2) provides that the duration of the exclusion period shall be specified in the order. Of crucial importance here is para. (4) of reg. 23, which provides that a notification of a proposal to make an exclusion order: ' shall contain (a) unless the Minister certifies that it would endanger the security of the State to make them known, the reasons giving rise to the proposal referred to in paragraph. (3), (b) a statement that the person concerned may make representations in writing to the Minister to which shall include the particulars specified in Schedule 4 within 15 working days of the date of issue of the notification, and (c) the proposed duration of the exclusion period.'

8

This provision draws an express distinction between providing (i) the reasons for making the proposal and (ii) the proposed duration of the exclusion period, which is not subject to a requirement to furnish reasons. It is in the light of that distinction that reg. 23(6) must be read, which provides that where the order is made and unless the security of the State otherwise requires, the ' reasons for the making of the order' must be notified to the person concerned. In the light of para. (4) Nash that can only mean the reasons for the order itself rather than for the duration of the order.

9

Therefore, this is not a case where the statute requires reasons for each and every element of the decision such as the duration of it, although I say that without taking from the general administrative law need for reasons independently of the statute. But even if it was such a case, the fact that the statute requires reasons to be notified does not mean that notification of a decision with reasons lacking, or provision of the reasons at a later date, has the effect that an otherwise valid decision is necessarily invalid. The terms of the statute would be one matter among others to be considered in the exercise of the court's discretion as to the appropriate order in the interests of justice.

Caselaw on reasons relied on by the applicant
10

The applicant's argument majors on the judgment of Kelly J. (as he then was) in Deerland Construction v. Aquaculture Licences Appeals Board [2008] IEHC 289 [2009] 1 I.R. 673. That judgment relies heavily on the judgment in Nash v. Chelsea College of Art and Design [2001] EWHC Admin 538. In the latter judgment, Stanley Burnton J. held that where there was a statutory duty to give reasons as part of the notification of the decision then ' only in exceptional circumstances if it all will the Court accept subsequent evidence of the reasons', para. 34. However, it is clear that U.K. caselaw was somewhat more involved than what was opened to the court in Deerland. Indeed, Stanley Burnton J. had already qualified his views in another case after Nash but before Deerland was decided, and that later case was not opened to the court in Deerland. That case was R. B v. Merton London Borough Council [2003] EWHC 1689 Admin [2003] 4 All E.R. 280, where he held that the proposition just referred to was too widely expressed and stated that ' reasons that merely elucidate reasons given contemporaneously with a decision would normally be considered by the Court', para. 42.

11

That, however, is only a first step in qualifying the caselaw and it is clear now that there is a mountain of caselaw going the other way, which I will refer to later in this judgment.

12

12. The applicants" written submissions plaintively state that 'the judgment in Deerland does not appear to have been departed from by the courts. It remains good law', (para. 14) That is a highly questionable argument. The applicant's logic, if that is the word, here is that if a court makes a decision based on...

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