M.v (Lithuania) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 22 July 2016
• Neutral Citation: [2016] IEHC 432
• Court: High Court
• Docket Number: [2014 No. 292 J.R.]
• Date: 22 July 2016

BETWEEN

M.V. (Lithuania)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 432

[2014 No. 292 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Order of removal – Previous convictions – Art. 27(2) of the Parliament Council Directive 2004/38/EC – Genuine and sufficient serious threat to the public policy – Conduct of the individual concerned – Criminal behaviour and recidivist tendency – Certiorari

Facts: Following the order of removal made by the first named respondent against the applicant, the applicant sought an order of certiorari by way of application for judicial review to quash the decision of the first named respondent and other ancillary reliefs. The applicant contended that the order of removal by the first named respondent was irrational as it was based on previous convictions of the applicant, which were petty in nature and in no way could be characterised as posing a genuine and sufficient serious threat to the public policy.

Ms. Justice Stewart refused to grant to the applicant an order of certiorari to quash the decision of the first named respondent and other ancillary reliefs on the ground that the decision of the first named respondent was logical, reasonable and sustainable. The Court held that in the decision in Rutili v. Minister for the Interior [1975] E.C.R. 1219 relied on by the applicant relating to the principle of genuine and sufficiently serious threat to public policy was subject to restriction of interpretation as per art. 27(2) of the Parliament Council Directive 2004/38/EC. The Court held that in the present case, serious criminal behaviour and recidivist tendency were sufficient justification to warrant an order of removal from the State. The Court held that since in a short span of time, the applicant resided in the State was imprisoned for a considerate amount of time and became unlawfully at large, thereby rendering the belief of consistent and reliable employment as inappropriate.

JUDGMENT of Ms. Justice Stewart delivered on 22nd day of July, 2016.

1 The applicant in this case seeks, inter alia, an order of certiorari by way of application for judicial review quashing the decision of the first-named respondent to make a removal order against him dated 19th March, 2013, and affirmed on 13th May, 2014. These decisions were made pursuant to Regulation 20(1)(a)(iv) of the European Communities (Free Movement of Persons) Regulations 2006 and 2008.

Background

2 The applicant is a Lithuanian national born in 1990, who has been living in this State since 2011. Whilst living in Ireland, he has engaged in criminal behaviour that resulted in several convictions before various courts in 2011 and 2012. The Court also notes that the applicant has been arrested on thirteen separate occasions, dating from 19th August, 2011 to 19th March, 2012. Ten of these arrests related to theft offences. By letter dated 16th May, 2013, the applicant was sent a summary of charges and outcomes of such. The applicant had submitted that the offences and arrests outlined occurred while he was in the throes of drug addiction. According to the Irish Prison Service, the applicant came to be unlawfully at large in February, 2013.

3 On 16th May, 2013, the first-named respondent notified the applicant that a removal order was being considered against his continued presence in the State on grounds of public policy. He was also informed that an exclusion period of three years would be enforced against him. The proposed order was issued pursuant to Regulation 20(1)(a) of the EC (Free Movement of Persons)(No. 2) Regulations 2006 and was sent to the applicant whilst he was a prisoner at the Midlands Prison in Portlaoise.

4 In response to the proposed removal order, the applicant made handwritten representations by letter dated 21st May, 2013, in which he asserted that his siblings and father resided in the State with him and that he had no family left in Lithuania. The applicant submitted that he would have few job opportunities in Lithuania, but that he had been employed in a clothing recycling firm in Ireland.

5 A removal order was made by the first-named respondent and notified to the applicant on 19th March, 2013. The removal order had to be re-served on the applicant on 12th June, 2013, at the address he occupied most recently.

6 The applicant applied through his solicitors by letter dated 10th March, 2014, for a review of this decision. The applicant asserted that none of his crimes were serious and also claimed that he was a 'reformed character'. The applicant maintained that he no longer associated with the criminal elements that had allegedly been a bad influence on him and that he was in a relationship. A caveat was entered by the respondent that no objective evidence was entered in respect of this contention.

7 By letter dated 29th April, 2014, the first-named respondent wrote to the applicant's solicitors seeking further representations on the circumstances in which the applicant had come to the adverse attention of Gardaí. By letter dated 6th May, 2014, the applicant wrote to the first-named respondent and informed them that he could not make any significant additions to the submissions previously made on those matters. In this same letter, however, the applicant reiterated that he was a 'reformed character' and stated that he was 'currently serving' a short prison sentence. Furthermore, the applicant contended that he was in an ongoing relationship and that this was having a beneficial influence on him. The applicant underlined that, if he was removed from this State, this steadying influence would be extinguished.

8 By letter dated 14th May, 2014, the applicant was informed by the first-named respondent that the removal order in relation to his case had been affirmed and would be executed. Upon receiving notification of the removal order's affirmation, the applicant issued these proceedings to challenge the first-named respondent's decision. On 26th May, 2014, leave was granted by MacEochaidh J., which permitted the applicant to seek the reliefs contained in his prepared Statement of Grounds.

The applicant's submissions

9 Counsel for the applicant, Mr. Kenny, B.L., correctly acknowledges that, when the decision was made, the applicant had twenty-six convictions and had served a number of short prison sentences. These convictions were openly acknowledged and analysed by counsel, who did not wish to demean their importance. They comprised of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, a number of driving offences, fleeing the scene of an accident, possession of prohibited articles and failure to attend court on a specified date.

10 The applicant's arguments come under two main headings; proper transposition of the directive and traditional judicial review principles regarding the rationality of the decision.

Rationality of decision

11 According to applicant's analysis of Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families O.J. L257/13 19/10/1968, the first-named respondent must conclude that the applicant's activities were contrary to public policy, security or health before making a removal order. The applicant argues that basing that decision upon the applicant's previous convictions and criminal activities is irrational, as none of the offences concerned could be characterised as systematic or serious in nature. The applicant asserts that 'petty thievery' could not be reasonably regarded as a threat to public policy, security or health.

12 The applicant relies on the European Court of Justice's decision in Rutili v. Minister for the Interior (Case 36-75) [1975] E.C.R. 1219 in terms of the fundamental interpretive devices to be applied to derogations of this nature; It is to be construed 1. in the strictest possible sense, and 2. only where the activities of an individual constitute a ' genuine and sufficiently serious threat to public policy'.

13 The applicant also relies upon the decision of the European Court of Justice in R v. Boucherou (Case 30-77) [1977] E.C.R. 1999, in which a preliminary reference was made by the Magistrate's Court sitting in Marlborough Street, London. The applicant places heavy emphasis upon the court's decision in Boucherou for the proposition that illegal behaviour on the part of an applicant is, on its own, insufficient unless that illegal behaviour also represents a genuine and serious threat affecting one of the fundamental interests of society.

14 The applicant argues that it is the second component of the test that is absent in his case, i.e. the genuine and serious threat affecting one of the fundamental interests of society. This element is absent in two aspects; a. it is entirely absent from the applicant's behaviour as attested to by the material relied upon by the respondent, and b. even if it were present, it is not identified at any point in the respondent's decision to make a removal order.

15 The joined cases of Orfanopoulos and Oliveri ( Cases 482-01 and 493-01) [2004] ECR 5257 were also included in the applicant's submissions. In Orfanopoulos and Oliveri, the ECJ considered whether a persistent petty criminal, who had served a number of custodial sentences and demonstrated recidivist tendencies, could be subject to an exclusion order. The ECJ held that the derogation principles enunciated by the Court in Rutili must be subject to an even stricter interpretation when the subject is an EU citizen. The applicant maintains that that decision is directly applicable to his case, as he is a Lithuanian national. As a result, a particularly restricted understanding of the principles regarding derogation from the Free Movement...