P.R and Others v Minister for Justice and Equality and Others

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date24 March 2015
Neutral Citation[2015] IEHC 201
CourtHigh Court
Date24 March 2015
R (P) & Ors v Min for Justice & Ors
No Redaction Needed
JUDICIAL REVIEW

BETWEEN

P.R., J.R. AND K.R. (A MINOR SUING BY HER FATHER AND NEXT FRIEND P.R.)
APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

[2015] IEHC 201

[No. 700 J.R/2013]

THE HIGH COURT

Immigration – Permanent residence – Directive 2004/38/EC – Criminal prosecution – Removal order – Exclusion order – Public policy – Breach of fair procedures – Review procedure – Independent review – Regulation 21(3) of Directive 2004/38/EC – Article 40.3 of the Constitution

Facts The first and second named applicants are Polish nationals. The third named applicant is their daughter, born in Dublin in March 2012. The applicant moved to Ireland in 2006 and he commenced work in 2007. In October 2011, he acquired “permanent residence” in the State having lived as a worker for five years in accordance with Directive 2004/38/EC. In June 2012 he was sentenced to three years imprisonment for sexual assault. In January 2013 the Irish National Immigration Service issued a removal order against him which contained an exclusion order for a ten year period. The reason proffered was that he had come to the attention of An Garda Síochána and appeared before the courts in respect of a number of sexual offences and the Minister had formed the opinion that his conduct was such that it would be contrary to public policy to permit him to remain in the State. The applicants sought an order of certiorari quashing the decision of the respondent refusing to set aside the removal order and exclusion period and a declaration that the implementation of the order would be an unlawful interference with the applicants” rights. An interim injunction was granted prohibiting the implementation of the removal order. The applicants argued there had been a breach of the right to fair procedures, a right to be heard and the right to good administration under European Union law as the findings had been made in circumstances to which the applicant had no opportunity to respond. The applicants alleged the Minister had failed to consider his mental health at the time the offences were committed.

Held The judge granted leave to apply for judicial review by way of certiorari and quashed the decision made by the respondent on the review. The judge concluded that the respondent had acted in breach of fair procedures in failing to provide the first named applicant with an independent review.

1

1. The first named applicant (P.R.) is a Polish national, born 24 th May, 1977, who was married to the second named applicant (J.R.), also a Polish national on 22 nd October, 2011. The third named applicant (K.R.) is their daughter born on 25 th March, 2012, in Dublin. The applicant moved to Ireland in October 2006, and commenced employment in January 2007. He worked for two years following which his contract was not renewed and then completed a number of training courses through FAS and worked as a cleaner between November 2009 and May 2011. In November 2010, he also took up employment as a security officer. In October 2011, he acquired "permanent residence" in the State having lived as a worker here for five years in accordance with the Directive 2004/38/EC.

2

2.On 7 th June, 2012, P.R. was sentenced to three years imprisonment, the last sixteen months of which were suspended at Dublin Circuit Court in respect of six counts of sexual assault. On 29 th January, 2013, the Irish National Immigration Service (INIS) issued a removal order against him which contained an exclusion order for a ten year period. By letter dated 7 th March, 2013, an internal review of this decision was sought and submissions were made on his behalf. By letter dated 26 th March, 2013, INIS "reaffirmed" the removal order and ten year period of exclusion. A judicial review was instituted in respect of that decision (Record No. 2013/331 J.R.). A substantive hearing of that application was commenced before the High Court (MacEochaidh J.) on 29 th May, 2013, which was adjourned, part heard, following which negotiations took place and the proceedings were struck out by consent on 16 th July, 2013. The case was settled on the basis that the review decision of 26 th March, 2013, would be withdrawn by the Minister and P.R's case would be reconsidered in the context of the information exhibited in the judicial review proceedings.

3

3. P.R. was released from prison on 6 th September, 2013, having served three quarters of the custodial element of the sentence. The balance of the sentence of sixteen months had been suspended on condition that he be of good behaviour. In the meantime, further evidence and material were submitted before a review decision was issued affirming the removal order on 18 th September, 2013.

4

4. The applicants applied for leave to apply for judicial review (Ryan J., 25 th September, 2013) for an order of certiorari quashing the decision of the respondent dated 18 th September, refusing to set aside the removal order and expulsion period and a declaration that the implementation of the order would be an unlawful interference with the applicants' rights. A declaration was also sought that the European Communities (Free Movement of Persons No. 2) Regulations 2006 and 2008 (the Regulations), are in breach of European Union law in failing to implement Directive2004/38/EC because they fail to provide P.R. with a right of appeal that is independent and compliant with Article 30.3 of the Directive and Article 47 of the Charter of Fundamental Rights and because they purport to authorise the arrest and detention of the first applicant at any time from 18 th September, 2013, without further notice to him. An interim injunction was granted prohibiting the implementation of the removal order and the court directed that the leave application be heard on notice to the respondent. The case proceeded by way of telescoped hearing and the injunction was continued until the determination of these proceedings.

The Removal and Expulsion Order
5

5. A letter issued from INIS on 12 th July, 2012, notifying P.R., who was then serving his sentence at Wheatfield Prison, that the Minister proposed to make a removal order against him under Regulation 20(1)(iv) of the Regulations, and subject him to an exclusion period preventing him from entering the State for a period of ten years from the date of his removal. The reason proffered was that P.R. had come to the attention of An Garda Síochána and appeared before the courts in respect of a number of sexual offences and the Minister had formed the opinion that his conduct was such that it would be contrary to public policy to permit him to remain in the State. He was invited to make written submissions to the Minister setting out reasons why the order should not be made.

6

6. Submissions were made on P.R.'s behalf by his solicitor by letters dated 17 th September, and 23 rd November, 2012. This included a personal statement by P.R. dated 14 th November and letters from his wife and brother who resided at that time with his wife and daughter in Dublin.

7

7. By letter dated 29 th January, 2013, P.R. was informed that a removal order in accordance with Regulation 20(1)(iv) had been made because of his convictions. An exclusion period of ten years was imposed. He was informed pursuant to Regulation 20(4)(a), that he could be arrested and detained without further notice for the purpose of ensuring his removal from the State in accordance with the order. He was also informed that he might seek a review of the decision.

8

8. The removal order was signed by Mr. Tom G. Doyle, Assistant Principal on behalf of the Minister for Justice and dated 28 th January, 2013. P.R. was also furnished with a copy of a consideration of his case file prepared by Mr. Aidan Fitzpatrick, Executive Officer and approved by Ms. Helen Masterson, Higher Executive Officer, Removal Orders Unit, Repatriation Section dated 24 th January, 2013, which had been reviewed by Mr. Doyle. In summarising, P.R's background, Ms. Masterson refers to his conviction and sentence in respect of seven separate counts of sexual assault before Dublin Circuit Criminal Court in respect of which a sentence of three years imprisonment was imposed with sixteen months suspended. The consideration was carried out in accordance with Schedule 9 of the Regulations. It noted that the applicant was 35 years old and first arrived in Ireland in October. 2006. He first came to the attention of An Garda Siochana on 16 th August, 2007. Family and economic circumstances were reviewed and it was noted that representations had been received that his family were "culturally integrated into the State" and "that P.R. wished to remain in Ireland". No information was submitted in relation to his state of health nor was any information provided regarding any links he had or retained with his country of origin, Poland. He had however resided outside Poland for over six years. He and his wife wished to remain in Ireland. No issues arose under s. 5 of the Refugee Act 1996 (as amended). His rights to private and family life under Article 8 of the European Convention on Human Rights were considered. It was accepted that a decision to remove PR would constitute an interference with his right to respect for private life under Article 8(1) of the Convention. It was concluded that the proposed interference was necessary for the prevention of disorder or crime and there was no less restrictive process available which would achieve that pressing social need.

9

9. It was noted that the Legal Aid Board had submitted an application for permanent residence dated 14 th November, 2012, on behalf of P.R. He was living with his wife and daughter at the time of his conviction and had been lawfully resident in the State...

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