Facts:
The first named applicant was a Polish national and an EU citizen. He had been living in Ireland since October, 2006. He married a Polish national in 2011. They had one child, who was born in Ireland in 2012. In October, 2011, he acquired permanent residence under the EC (Free Movement of Persons) (No. 2) Regulations 2006, as amended, having worked for a continuous period of five years in Ireland.
The making of the removal order arose out of the fact that, in 2012, the first named applicant was convicted of six counts of sexual assault on separate women in respect of offences committed between 2007 and 2011 inclusive. He was sentenced to three years’ imprisonment, the last 16 months of which were suspended. He was released from prison in September, 2013.
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 but a removal order was made against him, with an exclusion order of ten years. He sought a review of this and it was affirmed, but later set aside by agreement in the course of judicial review proceedings, with a re-examination of the review application being provided. It was said in his representations that he was mentally ill at the time of the offences, that he was remorseful, that he had no previous convictions and that he had engaged in counselling. A report was also submitted on his behalf asserting that his risk of re-offending was moderate to low. In affirming the order, all of those matters were considered but, having regard to the circumstances, the view was taken that he had a tendency towards recidivism.
The applicants challenged the decision to affirm the order in these proceedings. They claimed that the Minister did not give any or any adequate consideration to the circumstances in which the offences were committed, including the first named applicant’s mental health at the time and his subsequent changed circumstances, including his marriage, the birth of his daughter, the sentence served by him and his engagement in therapy; that the Minister had failed to consider his family ties in the State; and that the threshold required to remove him, that of “serious grounds of public policy” had not been met in circumstances where the sentence imposed was three years, with 16 months suspended. They also impugned as disproportionate the ten year exclusion order made. Finally, they claimed that Article 27.1 of Directive 2004/38/EC, which prohibited the restriction of freedom of movement to serve economic ends, had been breached by a consideration by the Minister that the State’s high unemployment rate compared with other EU countries was a justifiable reason for the first named applicant’s removal. They also claimed that the review breached the Regulations of 2006 as officials had been involved in it who had been involved in the first instance decision and, in addition, that it was unlawful because the Minister had failed to provide an independent appellate mechanism, to transpose fully and effectively Directive 2004/38/EC, and to comply with the Charter of Fundamental Rights.
The High Court quashed the affirmation of the order but only on one of the grounds upon which leave had been sought.
Reasoning:
First, the court noted that a person convicted of sexual assault was liable under s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 to a term of imprisonment not exceeding ten years and were regarded under Irish law as being serious in nature. It noted the high level of public and legislative concern that both sexes be protected from sexual assaults. Having regard to this and to relevant case law of the Court of Justice of the European Union, it held that sexual offences could provide the necessary basis upon which to make a removal order. It held that, in certain circumstances, a previous conviction of an EU citizen, and the nature of his or her behaviour, could warrant expulsion on that ground alone. It held that the Minister was entitled to rely upon the nature, extent and duration of the first named applicant’s criminal conduct when deciding whether or not it constituted a serious threat to public policy, and that past conduct, either alone or in conjunction with other factors, could give rise to such a threat, indicating a propensity to act in the same way in the future. It noted that the Minister had considered not only the sentence imposed on him but also his conduct over the period of the offences and the fact that, but for the fact that he had been apprehended, they would likely have continued. It held that there was ample evidence for the Minister’s conclusion that his conduct represented a serious risk to public safety in the State and was capable of giving rise to his removal on “serious grounds” of public policy.
Having regard to the Minister’s obligation to consider the applicants’ economic situation and the first named applicant’s integration into Irish society, it rejected the contention that it was inappropriate to consider his employment prospects in other EU Member States, including Poland, as against his employment prospects in Ireland.
It also rejected the contention that the ten year exclusion period was disproportionate, bearing in mind the conclusions reached in respect of his length of residence in the State, the period over which the offences were committed, and the fact that he had served a sentence of imprisonment here. It noted that he could also apply to revoke the removal order after three years had passed.
The court rejected the contention that the Minister had failed to provide an independent appellate mechanism or failed to transpose fully and effectively Directive 2004/38/EC, or to comply with the Charter of Fundamental Rights.
The court upheld the complaint made by the applicants 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 made the decision, and was of a grade senior to the grade of the person who made the decision. The court held that the first named 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. The decision was therefore quashed on that account.
Finally, the court rejected an argument of the respondents that, by agreeing to a re-examination of his review application following the setting aside of the first affirmation decision, the applicants were estopped from impugning the legality of the review process in these proceedings. The second review ought to have involved a de novo independent determination based on the material submitted in connection with it. In addition, the effectiveness of the remedy under EU law had not been litigated in the previous proceedings and, moreover, the second and third named applicants had not been party to them and could not be subject to an estoppel.
Decision:
The court therefore quashed the affirmation of the removal order.
