Krupecki v The Minister for Justice and Equality No. 3

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date15 March 2019
Neutral Citation[2019] IEHC 178
Docket Number[2019 No. 11 J.R.]
CourtHigh Court
Date15 March 2019
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, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

(No. 3)

[2019] IEHC 178

[2019 No. 11 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Removal and exclusion from the State – Reference to the Court of Justice of the European Union – Applicants seeking to challenge the first applicant’s removal and exclusion from the State – Whether a reference to the Court of Justice of the European Union was appropriate

Facts: The applicants, Mr Krupecki and his son, sought to challenge the first applicant’s removal and exclusion from the State in a third set of judicial review proceedings. The applicants sought a further review by the Minister for Justice and Equality having regard to what they said was the first applicant’s up-to-date position, particularly in regard to his rehabilitation and family life, and in the absence of any further decision by the Minister in that regard, issued these proceedings. Leave was sought on 14th January, 2019, the substantive reliefs being: (i) a declaration that the applicants are entitled to have the exclusion order the subject of an up to date review under regs. 25 or 23(9) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) prior to the first applicant’s removal from the State; (ii) an order of mandamus requiring such a review; (iii) an injunction; (iv) a declaration that the first applicant has a legitimate expectation of such a further review; (v) if necessary, an order of certiorari quashing the review decision of 28th September, 2017; (vi) if the applicants cannot obtain an up to date review of the exclusion order prior to the first applicant’s exclusion, a declaration that the respondents, the Minister, Ireland and the Attorney General, have unlawfully interfered with the applicants’ EU law rights. At paras. 48 to 49 of the applicants’ written submissions it was suggested that questions be referred to the Court of Justice of the European Union (CJEU).

Held by the High Court (Humphreys J) that, in view of the status of these proceedings as the latest iteration of multiple repetitive attacks on the decision to require the first applicant to leave the State and insofar as major elements of the proceedings constituted an abuse of process and a collateral attack on decisions previously challenged, and in particular having regard to the fact that the applicants’ major points did not arise on the facts because no significant change of circumstance had actually been shown, a reference to the CJEU was neither necessary nor appropriate; indeed, two of the proposed questions were dependent on amendments to the applicants’ pleadings which were refused. Humphreys J held that the applicants had run down the clock with multiple and, to an extent, abusive proceedings, and on that basis he would release the respondents from their undertaking not to remove the first applicant.

Humphreys J ordered that: (i) the request to refer issues to the CJEU be refused; (ii) the proceedings be dismissed; and (iii) the respondents be released from their undertaking not to remove the first applicant from the State.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of March, 2019
1

This is the third set of judicial review proceedings seeking to challenge the first-named applicant's removal and exclusion from the State, which was ordered almost two years ago. The first-named applicant is a citizen of Poland who has committed criminal offences during his period of residence in the State. By reason of those offences, he was made the subject of removal and exclusion orders, dated 8th May, 2017. He sought a review of those orders under the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015), reg. 25. The review decision issued on 26th September, 2017, affirming the orders. Those review decisions were then challenged in the applicants” first judicial review proceedings [2017 No. 1012 J.R.]. In Krupecki v. Minister for Justice and Equality (No. 1) [2018] IEHC 505 [2018] 7 JIC 2007 (Unreported, High Court, 20th July, 2018), I dismissed the challenge to the removal order but found that there had been a lack of reasons for the exclusion order. The applicant asked for an opportunity to make submissions as to whether the order should be quashed or whether further reasons should be directed, and I held a separate hearing on that issue. In Krupecki v. Minister for Justice and Equality (No. 2) [2018] IEHC 538 [2018] 10 JIC 0112 (Unreported, High Court, 1st October, 2018) I made an order directing the Minister to give reasons for the three-year exclusion period set out in the exclusion order and adjourned the balance of the proceedings pending the furnishing of those reasons. Reasons were provided by letter dated 27th July, 2018, and the applicants sought and were granted an amendment to the proceedings to challenge the adequacy of those reasons. The proceedings were then adjourned to 1st October, 2018.

2

In the meantime, on 28th September, 2018, the Minister issued a purported review decision under reg. 25 of the 2015 regulations, which examined the applicant's up-to-date situation in the State. The applicants then decided, having regard to the review decision, to discontinue the first set of judicial review proceedings, which were then formally dismissed on 1st October, 2018 (by order amended under the slip rule on 12th November, 2018), with costs to the applicant up to the 20th July, 2018 and no order for costs thereafter, apart from the costs incurred on the mention date of 1st October, 2018 itself, which were ordered to the applicants. The applicants then brought a second set of judicial review proceedings [2018 No. 952 J.R.] challenging the review decision of 28th September, 2018. On the hearing date of those proceedings, 21st December, 2018, the Minister did not contest the relief of certiorari and I granted that order, together with costs, to the applicants.

3

The applicants have since then sought a further review by the Minister having regard to what they say is the first-named applicant's up-to-date position, particularly in regard to his rehabilitation and family life, and in the absence of any further decision by the Minister in that regard, have issued the present proceedings. Leave was sought on 14th January, 2019, the substantive reliefs being:

(i). A declaration that the applicants are entitled to have the exclusion order the subject of an up to date review under regs. 25 or 23(9) of the 2015 regulations prior to the first-named applicant's removal from the State.

(ii). An order of mandamus requiring such a review.

(iii). An injunction.

(iv). A declaration that the first-named applicant has a legitimate expectation of such a further review.

(v). If necessary, an order of certiorari quashing the review decision of 28th September, 2017 (although that doesn't arise because the purported review decision has already been quashed).

(vi). If the applicants cannot obtain an up to date review of the exclusion order prior to the first-named applicant exclusion, a declaration that the respondents have unlawfully interfered with the applicants” EU law rights.

4

The leave application was adjourned to 21st January, 2019, on which date I granted leave. The respondents, on the return date of 28th January, 2019, sought one week to file opposition papers and gave an undertaking that the first-named applicant would not be removed pending the next mention date. Further time was subsequently sought and opposition papers were ultimately delivered on 15th February, 2019. On 25th February, 2019, a hearing date was fixed. I have received helpful submissions from Mr. Michael Lynn S.C. (with Mr. Paul George Gunning B.L.) for the applicants and from Ms. Siobhán Stack S.C. (with Mr. Anthony Moore B.L.) for the respondents.

Application for amendment
5

On the day of the hearing, Mr. Lynn applied for an amendment of the statement of grounds to challenge the validity of reg. 20(11) of the European Communities (Free Movement of Persons) Regulations 2015, by reference to EU law....

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