Kovalenko v Minister for Justice and Equality, Commissioner of An Garda Siochana, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality, Commissioner of An Garda Siochana, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 624
Nature of Proceedings:Judicial Review
Judgment Date/s:12 Dec 2014
Judge:McDermott J.
Category:EU Treaty Rights
Keywords:Entry Ban, EU Treaty Rights, Freedom of Movement (Right to), Minor, Removal Order
Country of Origin:Latvia
URL:https://www.courts.ie/acc/alfresco/9314a321-e09e-43af-81aa-481cb6afb378/2014_IEHC_624_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The second named applicant was a Latvian national and, therefore, a Union citizen. He had been living in Ireland since December, 2003. He married a Latvian in 2005 and had lived with his wife since his removal on foot of a removal order made pursuant to the EC (Free Movement of Persons)(No. 2) Regulations 2006, as amended, in June, 2013. They had one child, who was born in Ireland in 2006.

The making of the removal order arose out of the fact that, in 2006, the applicant was convicted of rape contrary to s. 48 of the Offences Against the Person Act 1861, and s. 2 of the Criminal Law (Rape) Act 1981, as amended. He was sentenced to a period of imprisonment of seven years. He was also convicted of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990, and sentenced to a concurrent term of seven years’ imprisonment. He was released from prison in May, 2011.

The Minister for Justice issued a proposal to remove him under the Regulations of 2006, on the basis that his conduct or activity in the State was contrary to public policy. He made representations in response and contended that his removal would be disproportionate for the following reasons:-

  1. he was not a habitual offender and the offences in respect of which he was imprisoned arose out of a single incident;
  2. he had not come to the adverse attention of the Gardaí since his release; and
  3. his removal would sunder the ties between him and his wife and child, as his wife intended to remain in the State.

The Minister decided to make a removal order, including an order excluding him from the State for ten years. He considered that allowing him to remain in the State would represent a serious risk to public policy and security in light of his conviction for rape and that his removal would protect the citizens and residents of the State. It was considered open to the family to remain together either in Latvia or another EU Member State, their child being of an adaptable age. It was considered that his removal would not breach article 8 ECHR and that there was no less restrictive process available which would achieve the objectives of preventing disorder and crime.

The applicant applied for a review of the decision to make a removal order against him, relying upon the earlier representations and including some additional evidence. He maintained that he was aware of the serious nature of his crime but was cooperating fully with the probation authorities and he was determined to rehabilitate himself.

Having considered the matter, the Minister decided to affirm the order. In reaching that view, the Minister relied not only upon the matters previously relied upon, but also upon a number of matters of which he had been apprised during the review from the Irish Prison Service (“IPS”), and of which he had not put to the applicant. These concerned his behaviour in prison. The Minister held that his removal would not breach article 8 ECHR, as it was justified by article 8(2) ECHR.

The applicant obtained leave from the High Court to challenge the affirmation of the order on a number of grounds, which can be summarised as follows. First, he contended that the decision was unlawful as it was based solely on a previous conviction arising out of a single incident; that the Minister failed to consider or determine whether his personal conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; and/or that the Minister erred in determining that his removal and exclusion was necessary in order to prevent disorder and crime. Secondly, he impugned the reliance by the Minister on the IPS information which had not been put to him for comment. Thirdly, he contended that the timescale within which the decision was made (i.e. three days from receipt of the request for review) was so short that it could not have allowed for full and proper consideration of his and his family’s rights. Fourthly, he argued that the review breached the Regulations of 2006 as a departmental official who had been involved in it had also been involved in the first instance decision. Lastly, he claimed that the Minister had erred in law by deciding that he had not obtained permanent residence in the State on account of excluding from his reckoning the time spent by him in prison.

At the post-leave stage, the High Court quashed the affirmation of the order on the basis of the reliance on the IPS information and of the departmental official’s involvement in the decision-making process at both the first instance and review stage.

Reasoning:
First, turning to the public policy basis for removal of the applicant, it noted that the offences of which he had been convicted carried the potential for a maximum sentence of life imprisonment to be imposed and ranked amongst the most serious offences in the criminal code. The policy underlying the offences made clear that not only was the conduct leading to such offences to be condemned and punished, but also that females be protected from such vicious assaults. It noted the continuing efforts made by the Oireachtas to improve the protections available to citizens of either sex from sexual crimes, and adverted to the enactment of the Sex Offenders Act 2001, which applied to the applicant as a sexual offender for an indefinite period, and obliged him to report his place of residence to the Gardaí at all times. It pointed out that Court of Justice case law, such as C-30/77 Bouchereau, afforded the Member States a degree of discretion with regard to recourse to removal on public policy grounds.

The court held that it was satisfied that the Minister was entitled to rely upon the criminal conduct of the applicant as conduct which, of itself, might constitute a threat to the requirements of public policy. It noted, in addition, that it was not the only factor considered by the Minister, who acknowledged that, whilst it was a single incident, it did not detract from the seriousness of the offences and the threat which their nature posed to the citizens and residents of the State. It also observed that the Minister had had regard to his attitude to the offences, noting that he had not expressed any remorse or regret for them. It held that the nature and seriousness of criminal conduct and the attitude and subsequent behaviour of a person in respect of offences committed might be considered alone or, in appropriate circumstances, cumulatively with other factors under the heading of “public policy” when deciding to remove or exclude him or her from the State.

It held that it was well-established that, when considering the expulsion of a Union citizen offender, account had to be taken by the host Member State of his or her fundamental rights, including the protection of family life as guaranteed by article 8 ECHR and Article 7 of the Charter of Fundamental Rights. It held that the Minister had properly considered and weighed all relevant matters, including the risk posed by the applicant to public order, his social and cultural bonds, his family relationships, and his claim to have been of good behaviour since his release.

It rejected the reliance placed by the applicant upon the fact that he had not committed any offences since his release from prison in 2011, that the convictions arose out of a single incident, and the assertion that there was no likelihood of reoffending on his part and that his conduct could not be regarded as representing a genuine, present or sufficiently serious threat to public policy. It held that that submission failed to take account of the overall assessment which the Minister had made, including the nature of the offences, the absence of remorse or apology, and the significant and important matter of public policy.

Secondly, the court turned to the alleged breach of fair procedures represented by the reliance placed by the Minister on the information obtained from the IPS. It held that, whilst no express adverse conclusion had been stated in relation to that material in the affirmation decision, it had clearly been taken into account, implicitly to the prejudice of the applicant. It had not formed part of the initial consideration and consequently did not form part of any of the submissions made on his behalf in respect of the review. He had not been given any notice of the proposed reliance on it and the court held that that breached fair procedures, as a result of which the order had to be quashed.

Thirdly, the court rejected the applicant’s complaint that the timescale within which the order was affirmed once the request for review had been received meant that no proper consideration had been given to the applicant’s circumstances. It held that there was no evidence to support the proposition that the officials concerned were incapable of dealing with this decision within one or two days.

Finally, the court upheld the complaint that the affirmation decision was unlawful because of the involvement in it of an official who had been involved in the making of the first instance decision. It noted that, under reg. 21 of the Regulations of 2006, the review had to be carried out by ministerial official who was not the person who had made the initial decision, and was of a grade senior to the grade of the person who had made it. The court held that the applicant was entitled to an independent review of the first instance decision. The involvement of the official in question in making recommendations leading to the ultimate decisions at both levels breached fair procedures and the spirit and intention of the Regulations. Accordingly, the decision was quashed on that account too.

Decision:
The court therefore quashed the affirmation of the removal order.

Principles:

Conviction of a Union citizen or a family member for sexual crimes can constitute a basis for making a removal order on the grounds of public policy in respect of such a person under the EC (Free Movement of Persons)(No. 2) Regulations 2006.

When assessing whether or not to make such an order, the Minister for Justice is entitled to take into account the nature and seriousness of the criminal conduct and the attitude and subsequent behaviour of the offender. That may be considered alone or, in appropriate circumstances, cumulatively with other factors under the heading of “public policy” when deciding to remove or exclude such a person.

It is not necessarily relevant that the person has not committed any other offences in the meantime; a wider appraisal of the risk to public policy created by allowing him or her to remain in the State must be made by the Minister.

If, when making a removal order or affirming its making, the Minister comes into possession of material information pertaining to the risk posed by the applicant to public policy, it should be put to the applicant for comment in accordance with fair procedures.
A ministerial official who was involved in the decision-making process leading to the making of a removal order should refrain from having any involvement in deciding whether or not to affirm the order as part of any review application. Failure to do this will lead to an affirmation decision being set aside on the ground of objective bias.

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