MS v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 08 November 2016 |
| Neutral Citation | [2016] IEHC 762 |
| Docket Number | [2016 No. 322 JR] |
| Court | High Court |
| Date | 08 November 2016 |
[2016] IEHC 762
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2016 No. 322 JR]
Asylum, Immigration & Nationality – Conviction for possession of marijuana plants – Sentence of imprisonment – Removal order – Public policy – Directive 2004/38/EC
Facts: -The applicant sought an order of certiorari for quashing the review decision of the respondent for upholding the initial removal order and reducing the exclusionary period to three years. The applicant contended that the nature of offence that he had committed was insufficient to prove that he was a serious threat to public policy and security. The applicant contended that the respondent had failed to consider the mitigating factors that there were no prior convictions and that a portion of his sentence had been suspended. The respondent asserted that it had taken into consideration all the facts and circumstances of the case.
Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court found that the offence of possession of marijuana itself constituted a danger to society and thus, it was necessary to put a curb on such behaviour of foreign nationals. The Court held that it would not interfere with the discretion granted to the respondent for giving appropriate weight to the evidence unless it was vitiated by some serious error of law.
The within matter came before the Court on 25th October, 2016 by way of application for certiorari seeking to quash the review decision of the respondent upholding the initial removal order and reducing the exclusionary period to three years, which decision was communicated to the applicant on or about 27th April, 2016. In addition the applicant seeks an order compelling the respondent to reconsider the review application and further seeks a declaration to the effect that the offence which he was convicted of is insufficient to represent a present and serious threat to public policy or security and therefore the respondent's decision is disproportionate and does not comply with the principles provided by Directive 2004/38/EC.
Leave was afforded by MacEochaidh J. on 27th June, 2016 to bring the within application.
The application was grounded upon the notice of motion of 1st July, 2016, the undated statement of grounds and the affidavit of the applicant of 5th May, 2016.
The respondent is resisting the application based upon a statement of opposition of 18th October, 2016 which in turn is grounded upon an affidavit of Ben Ryan of 19th October, 2016.
The applicant is a Polish national born in September, 1983 and has resided in Ireland since July, 2006.
On 3rd August, 2014 the applicant pleaded guilty in the Circuit Court to an offence in relation to the cultivation of approximately one hundred and twenty marijuana plants, worth approximately €97,000, in his attic. On 7th May, 2015 the applicant was sentenced to three years in prison with a final year being suspended for a period of two years. The respondent wrote to the applicant by letter of 8th July, 2015 indicating that it was proposed that a removal order be made against the applicant on the grounds of public policy. The applicant responded to same by a letter of 26th July, 2015 offering reasons why he (and his co-accused) should not be removed.
Although a letter was dispatched by the respondent to the applicant bearing date 30th November, 2015 informing the applicant of a removal order together with an exclusion order for a five year period, ultimately this was not furnished to the applicant (by reason of the fact that he had moved from Loughlan House Detention Centre in Cavan to Castlerea Prison) until in or about 21st January, 2016.
Subsequently the applicant secured an order under Article 40 of Bunreacht na hÉireann, 1937, on 4th February, 2016 as by then the applicant was being held on the basis of the removal order only as he had completed his prison sentence by the end of January, 2016.
On the cover letter of 2nd February, 2016 the applicant sought a review of the removal order and period of exclusion and, following such a review by the respondent, by order of 27th April, 2016 it was ordered that the applicant be removed from the state and that the exclusionary period would be three years.
The grounds upon which the applicant seeks the relief hearing are:
a. The offence with which he was convicted on 3rd August, 2014 is insufficient in itself to ground a present and serious threat to public policy and security.
b. The respondent failed to consider mitigating circumstances of the applicant, in particular the lack of previous convictions, the nature of the offence, the suspended portion of the sentence and the applicant's integration within the State.
c. The respondent discounted all indicators that the offence was a once-off offence, related to cannabis and there was a low risk of reoffending.
d. The respondent's decision is in breach of the European Communities (Free Movement of Persons) Regulations, 2006, as amended, and contrary to the provisions of Article 28 of Directive 2004/38/EC.
e. The exclusion period is arbitrary and without explanation or reason.
The respondent resists the applicant's application on the following general grounds:
a. By reason of delay, the applicant is not entitled to challenge any portion of the removal order of 30th November, 2015 but rather is confined to the review removal order.
b. The offence with which the applicant was convicted was sufficient to ground a serious threat to public policy or security.
c. The respondent did consider and attached sufficient weight to all mitigating circumstances.
d. The respondent was not obliged to exhaustively rehearse all representations made and the weight to be attributed to any such matter was a matter for the respondent solely.
e. The respondent's decision was within the statutory framework identified by the applicant. Notwithstanding that the applicant was convicted of one offence only nevertheless the respondent was entitled to treat same as sufficient to make a removal and exclusion order on the grounds of public policy.
f. It is denied that the respondent acted arbitrarily.
g. Looked at in totality, sufficient grounds are apparent from the decision of 27th April, 2016.
It is common case between the parties that the applicant is, by reason of the fact that he has been continuously in Ireland since 2006, entitled to permanent residence in the State in accordance with Clause 12 of the European Communities (Free Movement of Persons) No. 2 Regulations, 2006.
Clause 19 of the 2006 Regulations aforesaid provides for restrictions on the right of residence on grounds of public policy, public security or public health. The Regulations at Clause 20 provides that the Minister may by order require a person to whom the Regulations apply to leave the State within the time specified in the order inter alia on the basis that the conduct or activity of such person would be contrary to public policy. Under Clause 20(1)(c) the Minister may impose an exclusion period on that person and at Clause 20(2)(iii) if the Minister proposes to impose an exclusion period on the person the proposed duration of the exclusion period must be specified. The 2006 Regulations were brought into force following Directive 2004/38/EC and under Article 28(2) thereof it is provided that the host member state may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
It is apparent from the foregoing that in the 2004 Directive the word ‘expulsion’ is used, whereas the 2006 Regulations referred to the making of a ‘removal’ order with the additional entitlement of the Minister to impose an ‘exclusion’ period.
The respondent argues that by looking at the decision of 27th April, 2016 in its totality it is clear as to the grounds why a removal order is made and as to why an exclusion order for a period of three years has been incorporated.
On the other hand the applicant suggests that it is not at all apparent from the decision of 27th April, 2016 why the exclusion period of three years has been incorporated. In this regard, for example the applicant points to the fact that the initial decision of November, 2015 incorporated an exclusion period of five years and this was reduced in the decision of 27th April, 2016 to a period of three years. It is asserted by the applicant that the basis for the reduction is not evident.
The respondent counters that the applicant is...
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