Mirga v Garda National Immigration Bureau

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 03 October 2016
• Neutral Citation: [2016] IEHC 545
• Docket Number: [2016 No. 332 J.R.]
• Court: High Court
• Date: 03 October 2016

BETWEEN

DANIEL MIRGA

APPLICANT

AND

GARDA NATIONAL IMMIGRATION BUREAU

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2016] IEHC 545

Humphreys J.

[2016 No. 332 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Order of removal – European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. 656 of 2006) – Criminal behaviour – Detention – Declaratory relief – Time limit – S. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, by s. 34 of the Employment Permits Act 2014 – Discretion of the Court

Facts: Following an order of removal of the applicant on ground of the applicant's offending behaviour, the applicant now sought a declaration that the applicant could not be removed without first being detained in the a scheduled place. The applicant sough a declaration regarding the defective nature of the notification of the applicant's removal as it omitted to specify the time allowed for the applicant to leave the state.

Mr. Justice Richard Humphreys refused to grant the declarations sought by the applicant. The Court observed that a challenge to the date specified in the notice was a secondary challenge to the removal order and therefore, engaged the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, by s. 34 of the Employment Permits Act 2014. The Court observed that the applicant could not avoid the procedures for seeking certiorari of an administrative decision by recasting a challenge as one for a declaration. The court noted that reg. 20 of the European Communities (Free Movement of Persons) (No. 2) 2006 Regulations forecasted that an order of removal would be a period of not less than one month unless urgent. The Court also found that the applicant withheld the information pertaining to the crime committed by the applicant and such conduct of the applicant was relevant to the exercise of the discretion for the Court in refusing the relief.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of October, 2016

1 The applicant arrived in Ireland from Poland in or about 2012 and has since then resided in the State with his four children, partner, mother, brother, sister and their extended families.

2 In 2013, he committed a series of burglaries on nine different homes in Co. Kerry. On 4th December, 2014, he was sentenced by Judge McDonagh in Kerry Circuit Court to four years' imprisonment, with two years suspended, for these offences.

3 On 10th July, 2015, the Minister made a removal order pursuant to the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. 656 of 2006), requiring him to leave the State ' within the period ending on the date specified in the notice served on or given to you under the said Regulation 20(3)(b)(ii)' of the 2006 Regulations. This form of words was in accordance with Schedule 8 to the Regulations (although the form has since been changed by European Communities (Free Movement of Persons) Regulations 2015 ( S.I. 548 of 2015) to refer to a specific date).

4 On 13th July, 2015, the Minister issued a notice of the removal order to the applicant stating that ' the time allowed to you to leave the territory of the State shall not be less than one month from the date of this notification'.

5 The applicant was in custody at that time and was due to be released in May, 2016.

6 On 12th May, 2016, the present proceedings were instituted and an interim injunction granted by Faherty J. The applicant was released on 13th May, 2016. An application for an interlocutory injunction came before the court on a number of dates thereafter.

7 On 3rd July, 2016, the applicant was allegedly involved in a 'serious burglary' in Tralee, according to the affidavit of Sergeant James Doyle of the Garda National Immigration Bureau sworn on 25th July, 2016. It appears that the applicant was at the time on bail granted by Tralee District Court until 21st September, 2016.

8 Precisely why the State had not as of the date of the hearing taken any steps to seek to review in the High Court the decision of the District Court to grant bail to this applicant, a serial burglar of residential property, in respect of an alleged further similar offence said to have been committed during the currency of his suspended sentence, was not outlined.

9 The day following the alleged serious burglary, 4th July, 2016, the injunction matter came before me. In relation to the fact that the alleged offence occurred on the previous day, Ms. Ann Harnett O'Connor B.L., for the respondents submits that this is ' not coincidental'. However, I was not made aware of that incident at the time I dealt with the injunction matter.

10 On 11th July, 2016, I heard the injunction application and discharged the interim injunction on the grounds that the balance of justice was overwhelmingly in favour of the immediate removal of the applicant from the State, having regard to the applicant's offending behaviour involving the serial criminal invasion of the homes of citizens, and having regard to the criteria as set out in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 I.R. 152 by Clarke J. (criteria recently considered and applied, in very different circumstances, by Hogan J. in C.C. v. Minister for Justice and Equality, Ireland and the Attorney General [2015] IECA 167 (Unreported, Court of Appeal, 27th July, 2015); see now the subsequent Supreme Court decision in that case [2016] IESC 48 (Unreported, Supreme Court, Clarke J., 28th July, 2016).

11 The leave application then came before...