Seredych v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 22 March 2018
• Neutral Citation: [2018] IEHC 187
• Docket Number: [2018 No. 132 J.R.]
• Court: High Court
• Date: 22 March 2018

BETWEEN

IVAN SEREDYCH, JOVITA KALPOKIENE-SEREDYCH, ANDRII SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND JOVITA KALPOKIENE-SEREDYCH)

AND

MARKO SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND JOVITA KALPOKIENE-SEREDYCH)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 187

[2018 No. 132 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Constitutional rights – Art. 8 of the European Convention on Human Rights (ECHR) – Arts. 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) – Deportation order – Breach of legal and constitutional rights.

Facts: The first applicant filed a judicial review application in relation to the deportation order made by the respondent against the first applicant. The first applicant claimed that the deportation order had infringed upon his family rights provided under the Constitution and art. 8 of the ECHR. The applicant contended that there was no reference in the decision to the rights that originated from arts. 20 and 21 of the TFEU and the respondent had failed to consider the serious threat to the fundamental interests of the society. The respondent contended that the first applicant had not established that the second applicant was present in the State on the basis of art. 21 of the TFEU. The respondent contended that a higher level of scrutiny of a deportation decision on serious grounds of public policy did not apply to the initial period of marriage.

Mr. Justice Richard Humphreys granted an order to dismiss the proceedings. The Court held that neither the constitutional rights nor the convention rights were absolute. The Court found that there was no illegality in the respondent's decision. The Court opined that since the first applicant was a sex offender, the respondent took into account the relevant case law and the criminal offending behaviour of the first applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 22nd day of March, 2018

1 The first named applicant is a national of the Ukraine, born in 1973. He arrived in Ireland in May, 2001 and was granted residency as the father of an Irish citizen child born to the first named applicant and his first wife in 2001. In the same year he committed certain road traffic offences, including driving without insurance, for which was convicted in July, 2002. He was granted permission to reside in the State on 27th April, 2005. He commenced work as a taxi driver in 2006. In that year he divorced his first wife, and in the same year or the following year he met and began cohabitation with the second named applicant, who was a Lithuanian citizen and is now a naturalised Irish citizen since 2014. She had three children from a previous relationship.

2 In June, 2012 the first named applicant committed the offence of sexual assault while in the course of acting as a taxi driver. The circumstances are described in the judgment of Birmingham J. at paras. 3 to 7 of his judgment in the criminal appeal ( D.P.P. v. Seredych [2016] IECA 415 (Unreported, Court of Appeal, 3rd November, 2016)), as follows:

'3. On 9th/10th June 2012 the complainant who was living in Cavan at the time was in Dublin. When she was socialising in Dublin she travelled in order to attend a 21st birthday party which was taking place in Clontarf Castle. After the events there a number of those who were at the party made their way to the city centre and in particular to the Temple Bar area in the early hours of the morning perhaps around 3 am she became separated from her friends, it might be said that she has always acknowledged that she had consumed alcohol on the occasion at a number of different locations. She had said "I wasn't too bad, I wasn't falling around the place like, I can quite remember what happened, I can quite remembered what happened, the events that happened so I wasn't very drunk".

4. Separated from her friends, the injured party decided to walk to McDonalds in O'Connell Street, where she hoped that she might meet up with some of them. She made her way across the Millennium Bridge and walked in the direction of O'Connell Street, she was feeling "vulnerable", that is her word, and was visibly upset and was crying. At one stage at least she was shouting for her friends.

5. On the North Quays a taxi pulled over. The driver told her to stop crying and he offered to take her home. She told him that she was going to Donaghmede and she got into the car, sitting in the front passenger seat. According to the complainant very shortly into the journey, he put his hand on her thigh. She remonstrated with him in Polish thinking that that was his nationality and that Polish was his language. In fact the taxi driver was Ukrainian. The injured party had some colloquial Polish as a Polish lodger had stayed with her family or with friends at some stage. He asked her had she a boyfriend, while all the time keeping his hands on her thigh. He then proceeded to move his hand further up under her underwear and touched her on the vagina. The injured party at the time was wearing a short gold party dress.

6. According to the complainant, when the taxi reached the seafront road in Clontarf, the driver pulled into a car park and he asked her if she would like to kiss. At this stage the complainant took out her phone and took down his name and badge numbers from the identification documents which were on the dashboard of the taxi while pretending to be engaged in texting a friend. The driver drove out of the car park and she directed him to drop her in Raheny where she knew that there was a garda station.

7. Again according to the complainant on the way there, he kept touching her vagina before exposing his penis taking her hand and placing it on his penis. She pulled her hand away and then when they arrived in the vicinity of Raheny garda station, she got out of the car and the driver did not make a request for payment.'

3 In July, 2015 the first and second named applicants had their first child. On 23rd September, 2015 the couple married. In November, 2015 the first named applicant was convicted of the offence of sexual assault, after contesting his guilt at the trial by attacking the accuracy of the evidence of the complainant, which of course he is entitled to do. Following the conviction, he was sentenced to three years' imprisonment.

4 On 8th June, 2016 the first named applicant's latest permission to be in the State expired. On 28th July, 2016 the first and second named applicants had their second child. The first named applicant applied for renewal of his permission to remain and on 14th July, 2016 the Minister indicated an intention not to renew the permission and invited submissions. On 8th August, 2016 the first named applicant submitted a document which is relied on on his behalf which concludes ' with your permission dear sir or madame I want to say that I am really sorry for this situation'. Reliance is implausibly placed on this as an expression of remorse but it rather seems to me to be a somewhat self-pitying statement that he is merely sorry for the situation. It does not even remotely reach the foothills of amounting to remorse for his offending behaviour, especially situated in the context of having contested his guilt at all stages up to and including an appeal against conviction, as he is entitled to do.

5 On 28th August, 2016, representations were made on behalf of the first named applicant and on 5th September, 2016, a proposal to deport was issued by the Minister. On 16th September, 2016 representations were made as to why a deportation order should not be made. On 3rd November, 2016, the Court of Appeal handed down a decision rejecting his appeal against conviction. A deportation order was made on 8th February, 2018.

6 Leave to issue the present proceedings challenging that deportation order was granted by Barrett J. on 15th February, 2018. On 16th February, 2018 the first named applicant was released from custody.

7 I have heard helpful submissions from Mr. Michael Lynn S.C. (with Mr. Anthony Lowry B.L.) for the applicants and from Ms. Siobhán Stack S.C. (with Mr. John P. Gallagher B.L.) for the respondent.

Was there lawful consideration of the constitutional rights of the applicants?

8 Mr. Lynn relies on the Court of Appeal decision in Gorry v. Minister for Justice and Equality [2017] IECA 282 (Unreported, Court of Appeal, 27th October, 2017) where the Minister failed to identify the constitutional rights involved and erred by assimilating the constitutional obligations with those under art. 8 of the ECHR, as applied by the European Convention on Human Rights Act 2003. However, in the present case the Minister did identify the constitutional rights involved, so that point does not arise. Given that those rights are identified, it cannot be said that there is an unlawful assimilation of the issues. Indeed, as Denham J., as she then was, said in Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25 [2008] 3 I.R. 795 at 823: ' These rights overlap to some extent and may be considered together with the constitutional rights.' That statement does not seem to have been specifically drawn to the attention of the Court of Appeal in Gorry, but sheds further light on the fact that...