High Court: Man convicted of sexual assault within a year of moving to Ireland loses challenge to removal order

About this case:

• Citation:
  [2019] IEHC 470
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Background

The applicant, JB, is a Polish national who came to Ireland in 2005. In August 2006, he was at a party in Dublin with a number of Polish nationals, when he sexually assaulted a woman who had fallen asleep on a couch. The victim awoke to find that her jeans and underwear had been removed and that JB was on top of her. She became alarmed and called out to her boyfriend who was in another room. The victim and her boyfriend left the party and contacted the Gardaí. Thereafter, JB was arrested and detained for questioning.

Following his release pending the preparation of an investigation file for the DPP, JB returned to Poland.

In 2012, a European Arrest Warrant issued against him and he returned to Ireland voluntarily. In 2013, JB appeared before the Central Criminal Court charged rape, contrary to common law, and sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990.

JB was convicted of sexual assault and sentenced to two years, with the last six months suspended.

Removal order

Prior to his release, JB was informed of the Minister’s proposal to make a removal order against him, under Reg. 20(1)(a)(iv) of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (hereafter “the 2006 Regulations”). JB was also informed that the Minister was proposing to impose a period of exclusion from the State of five years upon him, in accordance with Reg. 20(1)(c) of the 2006 Regulations.

JB made representations against that proposal, however, a removal order was made against JB in December 2014. JB requested a review of the decision, however, in April 2015, the removal order and five year exclusion period was affirmed.

In the context of a further review, additional representations were considered by the Minister who reaffirmed the decision in October 2016.

Judicial review

In the High Court, JB sought:

• (i) An order of certiorari quashing the review decision.

• (ii) A declaration that the 2006 Regulations or the 2015 Regulations, or both, are in breach of European Union law in failing to implement the Citizens’ Rights Directive correctly by failing to provide the applicant with a right of appeal that is full, independent and compliant with [Art. 31] of that Directive and Art. 47 of the Charter of Fundamental Rights of the European Union.

Mr Justice Keane considered the reliefs sought in reverse order.

Article 31 of the Citizens’ Rights Directive

JB contended that “the availability of judicial review and of the review mechanism constituted by Regulation 21 of the 2006 Regulations failed to provide him with the access to judicial and administrative redress procedures… required as a procedural safeguard under Article 31 of the Citizens’ Rights Directive”.

Mr Justice Keane said this argument was rejected in Balc & Ors v Minister for Justice [2016] IEHC 47 (Unreported) and in PR, JR & KR v MJE (No. 1) [2015] IEHC 201 (Unreported), and noted that the Court of Appeal ruled against the applicant’s contention in Balc & Ors v Minister for Justice [2018] IECA 76, (Unreported).

Finding that JB was not entitled to the declaration sought, Mr Justice Keane rejected the argument that the State failed to properly transpose or implement the procedural safeguards of Art. 31 of the Citizens’ Rights Directive or that the State is in breach of the requirements of Art. 47 of the Charter of Fundamental Rights of the European Union in that respect.

The review decision

Considering the order of certiorari sought, Mr Justice Keane explained that Article 27(1) of the Citizens’ Rights Directive permits the restriction of freedom of movement and residence on grounds including public policy. He said previous criminal convictions cannot in themselves constitute a ground for the decision, and that under Article 28(1) the host Member State must take account of considerations including the length of residence, age, health, family and economic situation, social and cultural integration into the host state, and extent of links with country of origin.

Considering Case C-30/77 R v Bouchereau [1977] ECR 1999 and Article 28 of the Citizens’ Rights Directive, Mr Justice Keane said JB was susceptible to removal on public policy grounds that did not have to be serious. A further consideration was that JB did not have five years’ continuous residence in the state necessary to acquire the right to permanent residence in the State.

JB submitted that there was no evidence to find that he had a propensity to reoffend, however, Mr Justice Keane rejected this. The judge also rejected JB’s contention that the review decision wrongly concluded that he committed rape. Mr Justice Keane said the Minister was open to draw inferences from JB’s return to Poland, and that the decision did apply the necessary proportionality assessment under Art. 27(2) of the Citizens’ Rights Directive.

Finally, Mr Justice Keane said it would be inappropriate to consider JB’s argument that the Minister’s decision was invalid because it failed to give reasons for fixing an exclusion period of five years – as this was an argument introduced by JB in written and oral submissions that he had not applied for.

• by Seosamh Gráinséir for Irish Legal News