P.R v The Minister for Justice and Equality No.3
| Jurisdiction | Ireland |
| Judge | Mr Justice Keane |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] IEHC 596 |
| Court | High Court |
| Docket Number | [2017 No. 287JR] |
| Date | 31 July 2019 |
[2019] IEHC 596
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2017 No. 287JR]
AND
AND
(No. 3)
Removal order – Exclusion period – Failure to give reasons – Applicants seeking to challenge an order made by the first respondent excluding the first applicant from the State for a period of seven years – Whether the first respondent’s decision failed to give reasons for fixing an exclusion period of seven years
Facts: The High Court (Keane J), in P.R. & Ors v Minister for Justice and Equality & Ors (No. 2) [2018] IEHC 269, ruled against the applicants’ challenge to an order made by the first respondent, the Minister for Justice and Equality, on 14 March 2017 upon review, excluding the first applicant, who is a Polish national and hence a European Union citizen, from the State for a period of seven years. In delivering that judgment, Keane J left over one ground of challenge for further argument. That remaining ground was whether the Minister’s decision failed to give reasons for fixing an exclusion period of seven years and, if so, whether that failure made it invalid and required it to be quashed.
Held by Keane J that the review decision did not fail to provide reasons for the exclusion period of seven years in the removal order against the first applicant.
Keane J held that the proceedings would be dismissed.
Proceedings dismissed.
In P.R. & Ors. v Minister for Justice and Equality & Ors (No. 2) [2018] IEHC 269, (Unreported, High Court, 11 May 2018), I ruled against the applicants” challenge to an order made by the Minister for Justice and Equality (“the Minister”) on 14 March 2017 upon review, excluding the first applicant, who is a Polish national and hence a European Union citizen, from the State for a period of seven years. The second applicant is the wife of the first applicant and is also a Polish national and EU citizen. They married on 22 October 2011. The third applicant is the couple's daughter, born in the State on 25 March 2012.
The review and order concerned were made pursuant to the provisions of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (“the 2006 Regulations”), under the transitional provision of Reg. 31(28) of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”). Both the 2006 and 2015 Regulations were made in exercise of the powers conferred on the Minister for Justice and Equality under s. 3 of the European Communities Act 1972 for the purpose of giving effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (“the Citizens” Rights Directive”).
In delivering that judgment, I left over one ground of challenge for further argument. That remaining ground is whether the Minister's decision fails to give reasons for fixing an exclusion period of seven years and, if so, whether that failure makes it invalid and requires it to be quashed.
The applicants had raised that ground in a perfunctory way over two short paragraphs in their written legal submissions, relying on the decision of O'Regan J in Smolka v Minister for Justice [2016] IEHC 641, (Unreported, High Court, 8 November 2016), now cited sub nom. M.S. v Minister for Justice and Equality [2016] IEHC 762 (Unreported, High Court (O'Regan J), 8 November 2016). They did so as following terms:
“55. The exclusion order is defective due to the absence of any reasons explaining how its duration came to be assessed: see Smolka v Minister for Justice and Equality.
56. Notably, despite the [first applicant's] rehabilitation, the effect of the order is to prohibit his return to Ireland at a date later than when the removal order was first made in January 2013. This is irrational.”
After the hearing of the application but before judgment was handed down, the Court of Appeal considered a similar point in Balc & Ors v Minister for Justice [2018] IECA 76, (Unreported, Court of Appeal (Peart J; Ryan P and Hedigan J concurring), 7 March 2018) (at paras. 123-126), albeit without express reference to the decision in Smolka (now M.S.).
For that reason, I invited the parties to make any further written and oral submissions they might wish on the decision in Balc as it affects that ground of challenge to the decision in this case. The parties made further written and oral submissions and I reserved judgment once again.
The original removal order, made on behalf of the Minister on 28 January 2013, imposed an exclusion period of ten years on the first applicant. The applicants thus contend that the reduced seven-year exclusion period imposed under the Minister's review decision and order of 14 March 2017 demonstrates the irrationality of that decision because, if permitted to stand, it will not expire until after the exclusion period under the original removal order would have expired (in March 2024, as opposed to January 2023), had that order been implemented unchallenged at the time when it was made. More fundamentally, the applicants argue that the removal order is invalid because no reasons were provided for an exclusion period of seven years, rather than any other exclusion period.
The review that led to the review decision and order of 14 March 2017 was conducted under Reg. 21 of the 2006 Regulations. Regulation 21 states in material part:
“(1) A person to whom these Regulations apply may seek a review of any decision concerning the person's entitlement to be allowed to enter or reside in the State.
…
(3) A review under this Regulation of a decision under paragraph (1) shall be carried out by an officer of the Minister who –
(a) is not the person who made the decision, and
(b) is of grade senior to the grade of the person who made the decision.
(4) The officer determining the review may –
(a) confirm the decision the subject of the review on the same or other grounds having regard to the information provided for the review or substitute his or her decision for the decision the subject of the review, or
(b) set aside the decision and substitute his or her determination for the decision.”
In M.S., O'Regan J summarised as follows the relevant arguments on the failure to give reasons for the exclusion period fixed:
“15. 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.
16. 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.
17. The respondent counters that the applicant is effectively complaining of a benefit which he received by virtue of the review decision and also points to the fact that the initial removal order of November, 2015 is not the subject matter of the within judicial review application.
18. In my view, the applicant is not so much complaining as to the benefit he received but rather is suggesting that by way of support for his argument that there is no reason contained in the review decision of 24th April, 2016 concerning the exclusion period. Same has varied from five years to three years notwithstanding that no additional documentation or information was available as between the original removal order of November, 2015 and the review decision of 27th April, 2016.”
O'Regan J resolved that argument in the following way:
“38. The reasons why the removal order is being made and, if the order incorporates an exclusion period, the reasons why the relevant exclusion period is being imposed, must be stated or be apparent. In this regard I am satisfied that under the heading of ‘Proportionality’ within the decision of 27th April, 2016, the basis and/or justification for making the removal order is apparent.
39. I am satisfied that there is nothing in the order of 27th April, 2016 which identifies or affords reasons for the inclusion of a period of three years” exclusion as opposed to any other period nor indeed is there any discussion within the order to identify why a reduced period of three years is more appropriate than the earlier period of five years which was included in the original order of November, 2015.
40. I am not satisfied therefore that the order of 27th April, 2016 was reasoned insofar as it incorporates an exclusion period of three years and for this reason the Court will quash the order of 27th April, 2016 and as a result the review decision remains to be concluded.”
There is no suggestion in the judgment in M.S. that the express terms of Reg. 21 were opened to the Court. It seems to me that the regulation requires the person conducting the review to give the matter fresh and independent consideration. Where that person substitutes his or her decision or determination for the decision the subject of the review, I have no doubt that he or she is required to provide reasons for it, but I do not accept that it is either necessary or appropriate for the review decision to include any discussion or explanation of the reason or reasons why it is at variance with the original one, should that be the case. To that extent, the term “review” used in Reg. 21 provides an...
To continue reading
Request your trial