Voivod v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 November 2018
• Neutral Citation: [2018] IEHC 647
• Court: High Court
• Docket Number: 2018 No. 34 JR
• Date: 19 November 2018

[2018] IEHC 647

THE HIGH COURT

Barrett J.

2018 No. 34 JR

Between:

SILVIU VOIVOD

APPLICANT

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Removal order – Exclusion order – Order of certiorari – Applicant seeking order of certiorari quashing removal order and exclusion order – Whether the impugned decisions contained reasoning as to the duration of the exclusion period settled upon

Facts: The applicant, Mr Voivod, a Romanian national resident in Ireland, on 12.10.2014, when he was at the Dandelion Bar and Nightclub in Dublin, committed a violent assault on a college student working on the premises. On 19.10.2016, Mr Voivod was convicted at Dublin Circuit Criminal Court of assault causing harm and sentenced to 3 years' imprisonment, with 18 months suspended. By letter dated 17.04.2017, the Department of Justice, etc. wrote to Mr Voivod, indicating that the first respondent, the Minister for Justice and Equality, proposed to make removal/exclusion orders in respect of him and detailing the applicable process. The Department's initial decisions were communicated by letters dated 08.12.2017, indicating that (a) a removal order (under reg. 20(1)(b) of the EC (Free Movement of Persons) Regulations 2015, and (b) an exclusion order (under reg. 23(1) of those Regulations) had been made in respect of Mr Voivod, pursuant to which he would be removed from Ireland and prevented from re-entering for 3 years. By letter of 21.12.2017, Mr Voivod's solicitors sought an intra-departmental review of the decisions to remove and exclude Mr Voivod. By letters of 11.01.2018, Mr Voivod and his solicitors were advised that a decision had been taken to affirm the orders. Mr Voivod sought the following principal reliefs: "(i) An order of certiorari quashing the decision of the first named respondent...dated 11th January, 2018...(ii) An order of certiorari quashing the removal order with an exclusion period...dated 8th December 2017". Those reliefs were incorrectly worded. There was an initial removal order and an initial exclusion order. Then there was the reviewer's decision to affirm same. There was no "removal order with an exclusion period".

Held by the High Court (Barrett J) that the sole respect in which the impugned decisions were legally frail was that they contained no reasoning as to the duration of the exclusion period settled upon.

Barrett J held that the court, bound as it was by Balc v Minister for Justice and Equality [2018] IECA 76, would quash solely that part of the exclusion order of 08.12.2017, as affirmed by the decision of 11.01.2018, concerning the duration of the exclusion order and remit solely that aspect of matters to the Minister for consideration.

Application granted in part.

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1 Mr Voivod is a Romanian national resident in Ireland. When he arrived in Ireland is unclear: his solicitors, acting on instructions, have indicated that Mr Voivod arrived in 2012; the Gardaí believe he first arrived in 2014. He was certainly here on 12.10.2014, when he was at the Dandelion Bar and Nightclub in Dublin. There he committed a violent assault on a college student working on the premises. On 19.10.2016, Mr Voivod was convicted at Dublin Circuit Criminal Court of assault causing harm and sentenced to 3 years" imprisonment, with 18 months suspended. By letter dated 17.04.2017, the Department of Justice, etc. wrote to Mr Voivod, indicating that the Minister proposed to make removal/exclusion orders in respect of him and detailing the applicable process. The interchange of correspondence that followed is outlined in the "Summary Chronology" later below. The decision-making process was comprehensive. It involved, inter alia, Department staff identifying the factual matrix by reference to which the Minister proposed to make his decisions, inviting Mr Voivod to make representations as to same, inviting him to make such other representations as he wished and referring, in the decisions, to the representations received and other factors considered relevant. The Department's initial decisions were communicated by letters dated 08.12.2017, indicating that (a) a removal order (under reg.20(1)(b) of the EC (Free Movement of Persons) Regulations 2015, and (b) an exclusion order (under reg.23(1) of those Regulations) had been made in respect of Mr Voivod, pursuant to which he would be removed from Ireland and prevented from re-entering for 3 years, the letters stating, inter alia:

'The State has a duty to protect its citizens in the interest of the common good....Mr Voivod's actions which led to his conviction underlines the view that his presence in Ireland is contrary to public policy and...a disturbance to the social order in the State.... Mr Voivod represents a serious threat to public policy and on this basis removal and exclusion from the State is justified. Mr Voivod has been given an individual assessment and due process in all respects and his rights under Article 7 of the [CFREU]... and Article 8 of the ECHR to respect for private life have been considered. Factors relating to the rights of the State have also been considered, including the prevention of disorder and crime in the interests of public policy and the common good in light of Mr Voivod's criminal conduct in the State....[I] f the Removal Order and...Exclusion Order are signed in respect of Mr Voivod, there is no less restrictive process...which would achieve the legitimate aim of the State'.

2 By letter of 21.12.2017, Mr Voivod's solicitors sought an intra-departmental review of the decisions to remove and exclude Mr Voivod. By letters of 11.01.2018, Mr Voivod and his solicitors were advised that a decision had been taken to affirm the orders. It is clear that the reviewer had regard in particular to the serious and violent nature of Mr Voivod's attack which was found to demonstrate a ' propensity for violence', the reviewer noting:

'It is noted that this incident involved physical violence, and would have been a terrifying ordeal for Mr Voivod's victim, who was glassed in the face and his two front teeth...knocked out, he has been left with scars....His medical treatment cost in excess of €5,000....It is considered that it shows Mr Voivod has a propensity to violence.... Having regard to the evidence...I am of the view that Mr Voivod has committed a very serious assault which shows that his presence in Ireland is a threat to public policy and public safety and warrants his removal from the State....I am in agreement with the original investigating officer and deciding officer....I am satisfied that the original decision in Mr Voivod's case was proportionate and reasonable to the legitimate aim being pursued'.

3 Mr Voivod seeks the following principal reliefs: '(i) An order of certiorari quashing the decision of the first named respondent...dated 11th January, 2018...(ii) An order of certiorari quashing the removal order with an exclusion period...dated 8th December 2017'. (These reliefs are not rightly worded. There was an initial removal order and an initial exclusion order. Then there was the reviewer's decision to affirm same. There was no ' removal order with an exclusion period'. It is desirable that reliefs sought be framed accurately. However, the respondents can never have been in doubt as to what end the within application sought). The grounds of objection are identified as follows in the statement of grounds:

'1. They are based on a single conviction which is prohibited by Article 20(7) of the European Communities (Free Movement of Persons) Regulations 2015.

2. They are based on the sole fact of one criminal act which occurred on 12th October 2014, and are not based on any, or any fair or reasonable assessment of whether the applicant now "represent[s] a genuine, present and sufficiently serious threat affecting one of the...