About this case:

• Citation:
  [2019] IEHC 609
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Refusing to grant the orders of certiorari sought, Mr Justice David Keane said the decision was neither disproportionate nor unreasonable when considered “in the round”.

Background

The applicant, Mr Lukasz Dabrowski, asserted that he arrived in Ireland “on 2 February 2014 or sometime in 2012”. He first came to the attention of gardaí in October 2015 in relation to a theft offence, and has since accumulated a total of 47 convictions. Between November 2016 and March 2017, Mr Dabrowski was sentenced by the District Court on ten separate offences for motoring offences, theft offences, burglaries, and failures to appear in court.

In May 2017, through the Irish Naturalisation and Immigration Service (INIS), the Minister for Justice and Equality informed Mr Dabrowski of his proposal to make a removal order and an exclusion order against him. The Minister proposed to make a removal order under the power to do so conferred by Reg. 20(1)(b) of the European Communities (Free Movement of Persons) Regulations 2015 where, “in the opinion of the Minister, the person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society to warrant his or her removal”.

In June 2017, the Minister made the removal order and a five-year exclusion order under Reg. 23 of the European Communities (Free Movement of Persons) Regulations 2015. Mr Dabrowski sought a review pursuant to Reg 25(1) of the European Communities (Free Movement of Persons) Regulations 2015; however, the decision was affirmed by the Minister on 13 September 2017.

European Arrest Warrant

In December 2015, the relevant authorities in Poland issued a European Arrest Warrant (EAW) for Mr Dabrowski to serve three prison sentences imposed on him between 2009 and 2013 for the offences of assault, criminal damage, theft, and unlawful possession of controlled drugs.

In November 2016, the High Court endorsed the EAW for execution, however, Mr Dabrowski contested his surrender seeking to rely on an issue that was then the subject of a pending Supreme Court appeal in Minister for Justice and Equality v Lipinski [2016] IESCDET 96. That point was later made the subject of a preliminary reference to the Court of Justice of the European Union in Minister for Justice and Equality v Lipinski [2017] IESC 26; however, in February 2018, the Supreme Court explained that the reference had been withdrawn in light of subsequent clarification provided by the CJEU in other cases. Ultimately, Mr Lipinksi was unsuccessful in his proceedings.

Judicial review proceedings

In the High Court, Mr Dabrowski was granted leave to challenge the review decision by seeking the following:

1. An order of certiorari quashing the review decision;
2. An order of certiorari quashing the removal order and the exclusion order.

Mr Justice Keane explained that Mr Dabrowski’s application raised two broad issues:

1. Did the Minister’s decision to make the removal and exclusion orders breach the separation of powers under the Constitution of Ireland or breach Mr Dabrowski’s rights under the European Arrest Warrant Act 2003, the Constitution of Ireland, the European Convention on Human Rights, or the Charter of Fundamental Rights of the European Union?
2. Was the Minister’s decision to make the removal and exclusion orders against Mr Dabrowski lawfully made under the Citizens’ Rights Directive and the 2015 Regulations?

Considering the first issue, Mr Justice Keane said that a significant number of the grounds relied on by Mr Dabrowski started from the proposition that his removal in accordance with the Minister’s order “would have the effect of setting at naught” the proceedings under the EAW Act 2003, or frustrating or circumventing Mr Dabrowski’s defence of them, or both. Mr Dabrowski argued that the Minister was “trespassing into the judicial domain” under the EAW Act 2003, or breaching Mr Dabrowski’s procedural and substantive rights in those proceedings, or both.

Further, the Minister expressly pleaded that he would not remove Mr Dabrowski from the State prior to the determination of the EAW proceedings.

However, Mr Dabrowski’s EAW proceedings were listed for hearing in the High Court in November 2018, wherein Ms Justice Aileen Donnelly ordered his surrender to Poland, which was effected in December 2018. In those circumstances, Mr Justice Keane said this first issue was no longer justiciable.  

Considering the second issue, Mr Justice Keane explained that the Minister’s decision, as an administrative decision, could not be “construed as strictly or as literally as legislation might be. Rather, it must be considered in the round when assessing its reasonableness”. Mr Justice Keane was satisfied that, by making the statement that Mr Dabrowski had “not made any claim that removing him to Poland would be in breach of the prohibition on refoulement”, the decision-maker intended to convey that Mr Dabrowski had not established the basis for a claim of breach of the principle of non-refoulement, not that the bare assertion of such a claim had not been made on Mr Dabrowski’s behalf.

Mr Justice Keane also rejected the argument that the fact that Mr Dabrowski was in custody when the removal and exclusion orders were made against him, his conduct could not represent a “present threat”.

Stating that the Minister was entitled to have regard to the many offences committed by Mr Dabrowski in a short space of time when considering his propensity to engage in criminal conduct, Mr Justice Keane said he was not persuaded that the decision was a disproportionate or unreasonable one. Furthermore, Mr Justice Keane rejected the submission that there was a breach of Mr Dabrowski’s entitlement to fair procedures.

Finally, acknowledging that the Minister’s decision contained an error of fact (in that it wrongly referred to Mr Dabrowski as driving while disqualified), Mr Justice Keane said this arose from a misconstruction of Mr Dabrowski’s long list of convictions for motoring offences and that  the decision had to be considered in the round and not “unpicked by reference to any isolated infelicity of language or expression”.

Finding that the error did not render the decision bad in law, Mr Justice Keane rejected this ground of challenged and refused the application for judicial review.

• by Seosamh Gráinséir for Irish Legal News