Zaporojan v The Chief Superintendent of The Garda National Immigration Bureau

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 27 November 2018
• Neutral Citation: [2018] IEHC 665
• Docket Number: 2018 No. 304 JR
• Date: 27 November 2018

[2018] IEHC 665

THE HIGH COURT

Barrett J.

2018 No. 304 JR

IVAN ZAPOROJAN

Applicant

– and –

THE CHIEF SUPERINTENDENT OF THE GARDA NATIONAL IMMIGRATION BUREAU

and

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

Removal – Exclusion – Citizens’ Rights Directive – Applicant seeking a quashing of an impugned decision – Whether a legal issue presented as regards the impugned decision by reference to Art. 27(2) of the Citizens’ Rights Directive

Facts: In 2004, the applicant, Mr Zaporojan, then a non-EU national, entered Ireland using false identity documents. From December 2008 to October 2015, he made false welfare claims of over €30,000. In January 2016, he acquired Romanian nationality. In March 2017, he was convicted of 6 deception offences and custody of a false instrument and sentenced to 3 years’ imprisonment with 18 months suspended. On 16.03.2018, the second respondent, the Minister for Justice and Equality, issued removal and exclusion orders against him. On 13.04.2018 the Minister affirmed those orders (the impugned decision). Mr Zaporojan applied to the High Court seeking, inter alia, a quashing of the impugned decision.

Held by Barrett J that no legal issue presented as regards the impugned decision by reference to Art. 27(2) of the Citizens’ Rights Directive (Directive 2004/38/EC) (the CRD). Barrett J held that it was for the Minister, as decision-maker, to decide whether conduct (even solely past conduct) can constitute an ongoing threat; there was nothing wrong in his decision in that regard from an administrative law perspective. Barrett J held that the impugned decision was not directed to some economic end; it rested on the grounding reasons. The court saw no issue as to proportionality presenting in the impugned decision, the grounding reasons or the associated decision-making process. Mr Zaporojan identified factors to which the Minister ought properly to have had regard; the court indicated parts of the impugned decision where such factors had been duly considered in conformity with law. Barrett J held that there was no legal deficiency presenting as regards the exclusion period settled upon. It was contended that the Minister improperly fettered his discretion by operating some fixed policy; Barrett J held that there was no evidence to support that contention. Mr Zaporojan noted that the impugned decision issued on 13.04.2018 and that he was removed 8 days later; he contended that this was in breach of Art.30/CRD as he ought to have been given a fresh one-month notification. Barrett J noted that this line of contention was previously rejected by the court in P.R. v Minister for Justice and Equality & ors [2015] IEHC 201, para. 73, by which decision the court was bound.

Barrett J held that all of the reliefs sought by Mr Zaporojan would be refused.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 27th November, 2018.

1 In 2004, Mr Zaporojan, then a non-EU national, entered Ireland using false identity documents. From December 2008 to October 2015, he made false welfare claims of over €30,000. In January 2016, he acquired Romanian nationality. In March 2017, he was convicted of 6 deception offences and custody of a false instrument and sentenced to 3 years” imprisonment with 18 months suspended. On 16.03.2018, the Minister issued removal and exclusion orders against him. On 13.04.2018 the Minister affirmed these orders (the “Impugned Decision”). Mr Zaporojan seeks, inter alia, a quashing of the Impugned Decision.

2 Free Movement. When it comes to free movement of EU nationals the court recalls, inter alia: (1) the Court of Justice's observations (a) in Case C-430/10 Gaydarov, para.32, that restrictions of that freedom ‘ must be interpreted strictly’, (b) in Case C-348/��09 PI, para.30, construing Art.27(2) of the Citizens” Rights Directive ( Directive 2004/38/EC) (the “CRD”), that expulsion ‘ is conditional on the…personal conduct of the individual…represent[ing] a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future’; and (2) the constraints applicable under the CRD when it comes to restricting free movement on grounds of public policy/security/health.

3 Serious Threat/Propensity. Article 27(2)/CRD provides, inter alia, that the impugned ‘ personal conduct of the individual…must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. In this regard, Mr Zaporojan claims, regarding his welfare fraud, that he was but guilty of one continuous criminal activity. But, as referenced in the Impugned Decision (p.7), he is guilty of multiple instances of (prolonged) welfare fraud which only ended when he was caught. Mr Zaporojan disputes that he has a propensity to...