Lingurar v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 February 2018
• Neutral Citation: [2018] IEHC 96
• Docket Number: [2017 No. 819 J.R.]
• Court: High Court
• Date: 08 February 2018

[2018] IEHC 96

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 819 J.R.]

BETWEEN

MARIAN LINGURAR

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum, Immigration & Nationality – The European Communities (Free Movement of Persons) Regulations 2015 – Exclusion order – The European Convention on Human Rights (ECHR) – Judicial review

Facts: The applicant sought judicial review of the affirmed decision of the respondent in relation to the exclusion order made against the applicant. The applicant contended that the respondent had unfair consideration of unproven allegations. The applicant also contended that the respondent did not take proper assessment of the best interests of the child of the applicant and the remedy provided by the respondent was incompatible with the directives of the European Communities (Free Movement of Persons) Regulations 2015. The respondent stated that it considered the fact that the applicant had been convicted for another offence. The respondent asserted that the family of the applicant was not financially dependent on the applicant so there was no meaning of better interests of the child.

Mr. Justice Richard Humphreys dismissed the action brought by the applicant. The Court held that the threat to public policy outweighed family rights. The Court noted that the respondent had made a lawful finding that the presence of the applicant was a threat to public policy as the applicant had received 14 convictions in relation to various grievous offences.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of February, 2018

1 The applicant is a Romanian national who entered the State in 2002. Numerous members of his family reside here, including his mother, wife and two children. He first came to the attention of Gardaí on 17th November, 2006, and has amassed a total of fourteen convictions in the State. Among the offences committed include handling items stolen from graves of babies, children and young people who died in tragic circumstances. In relation to that matter His Honour Judge Rory McCabe said this had been a ‘ mean, nasty and upsetting series of thefts’, before imposing a three year sentence.

2 On 25th September, 2011, Mr. John Kenny, proprietor of Kenny's Bar in Co. Galway, was tied up in his own pub and beaten in that restrained state so severely that he died of blunt force trauma to his body. His body was discovered by his wife and daughter the day after the murder, lying face down in the pub. The State's case was that the applicant was part of a group of people who set about robbing Mr. Kenny, and that the applicant drove three other people from Galway to the public house and back again. The applicant and his son were arrested for murder but no admissions were made. He was charged with manslaughter and received bail, which he complied with for a time but then left the jurisdiction. He was arrested in France on a European arrest warrant and was returned compulsorily to Ireland. He was duly tried, but shortly after the trial began the D.P.P. withdrew the manslaughter charge and accepted a plea of guilty of withholding information.

3 On 30th April, 2015, he was sentenced to four years imprisonment. On 30th March, 2017, the Minister proposed to make a removal order and an exclusion order against the applicant following representations. Those orders were made on 12th July, 2017. A review was sought, but on 4th October, 2017, the decisions were affirmed. The applicant now seeks judicial review in respect of that affirmation decision.

4 The day before this case was originally due to be heard, Baker J. decided in Sweeney v. Ireland [2017] IEHC 702 (Unreported, 23rd November, 2017) that s. 9(1)(b) of the Offences Against the State (Amendment) Act 1998 was unconstitutional.

5 I have received submissions from Mr. Paul O'Shea B.L. (with Mr. Colman FitzGerald S.C.) for the applicant and Ms. Siobhán Stack S.C. (with Ms. Grace Mulherin B.L.) for the respondent.

6 Mr. O'Shea summarised his case under four headings:

(i). Firstly, that there was unfair consideration of unproven allegations and that conduct attributed to the applicant was such that he was not convicted of.

(ii). Secondly, there was no proper assessment of the best interest of the child under the Constitution, European Convention on Human Rights and the EU Charter of Fundamental Rights, and that under EU law the entitlement to consideration of best interests is ‘ an absolute right’.

(iii). Thirdly, that he was not provided with an effective remedy and that to that extent the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548/2015) are incompatible with the directive.

(iv). And fourthly, that the Minister is not entitled to rely on the offence of withholding information in executing the removal and exclusion orders because that offence is unconstitutional.

Allegation of unfair consideration of unproven allegations

7 Mr. O'Shea complains that the applicant is ‘ innocent’ in connection with the death of Mr. Kenny and that there was no finding by a court that the applicant was involved in Mr. Kenny's death. The decision-maker on review notes the conviction for withholding information rather than manslaughter, and notes the submission that he was treated as having a role far higher than that to which he pleaded guilty. The Minister concludes that ‘ the seriousness of Mr. Lingurar's involvement in the injured party's death was reflected in the prison sentence he received’. This is a totally reasonable finding. The offence to which the applicant pleaded guilty in the circumstances clearly placed him as having an ‘ involvement in the robbery (that) led to the murder of an innocent victim’, as it is put in the decision. The decision-maker does not specifically go beyond the clear finding of an ‘ involvement’, which is totally justified in the circumstances given the plea to withholding information. Such a plea implies that the applicant was in possession of information regarding the murder, which he wrongfully withheld.

8 A subsidiary point is made that the decision-maker treated the...