Removal Orders and Exclusion in Light of JB v Minister for Justice and Equality [2022] IECA 89 : A Welcome Clarification?

Stephen Kirwan of the Immigration and International Law team examines the recent decision of the Court of Appeal in JB v Minister for Justice [2022] IECA 89.

The decision of the Court of Appeal in JB vs Minister for Justice provides much needed to those who are the subject of the removal and exclusion order process. This brief case note seeks to summarise the standout points dealt with in the decision of Mr Justice Tony Hunt in JB.

Legal framework:

The substantive legislative provisions which form the relevant background is the provisions of the Directive 2004\38\EC of the EU Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States often referred to as the ‘Citizens’ Rights Directive’.

Chapter VI of the Citizens Rights Directive deals with the circumstances where restrictions can be imposed on the right of entry and right of residence of an EU citizen in another Member State on grounds of public policy, public security, or public health. More commonly this is referred to as the States rights to remove and subsequently exclude EU citizens from a particular Member State.

Article 27 (1) of the Citizens Rights Directive notes that Member States may, subject to the limitations contained in Chapter VI, restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security, or public health.

Article 27(2) makes it clear that exclusion or removal measures taken on grounds of public policy or public security must comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.  It also makes clear that previous criminal convictions shall not in and of itself constitute grounds for exclusion or removal. Rather it obliges a Member State to evaluate on an individual basis, whether or not an individual is a genuine, present and sufficiently serious threat rather than relying on considerations of general prevention.

Article 28 of the Citizens Rights Directive provides further information about the basis on which different categories of European Union citizens may be expelled from the State. Depending on the duration of the citizen’s residence within a host state different levels of justification are required

1. are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

In essence, pursuant to Article 28 of the Directive:

1. EU citizens who have not acquired the right of permanent residence, that is, who have resided in the host State for fewer than 5 years can be removed on grounds of public policy and security.
2. EU citizens who have acquired the right of permanent residence by reason of having resided in the host State for 5 years can be removed on  serious grounds of public policy and security
3. Permanent EU citizens who have resided in the host State for 10 years or longer or are a minor can only be removed from the jurisdiction on foot of imperative grounds of public security

As part of any assessment host Member States are obliged to consider the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

Background timeline to the decision:

The appellant (a citizen of another European Union State) arrived in Ireland aged 24 to undertake a course and work. In August 2006 the appellant was accused of sexually assaulted another person at a party. The appellant was interviewed by An Garda Siochána and released “pending preparation of an investigation file”.

The judgment indicates that the appellant left the State with a view to undertaking and completing his studies but that at no time was it indicated that he was asked to remain in the State pending the conclusion of the investigation nor was there a suggestion that the appellant was looking to avoid the consequences of the charge.

In any event the appellant returned to Ireland voluntarily after an arrest pursuant to an European Arrest Warrant issued in August 2012 to answer charges pursuant to Section 2 Criminal Law (Rape) Act 1990. In 2013 after the appellant underwent a jury trial, Mr Justice McCarthy, after a jury trial, imposed a prison sentence of two years with six months suspended.

In 2014 a proposal to issue a removal order on the grounds that the conviction for sexual assault constituted conduct “such that it would be contrary to public policy to permit [the appellant] to remain in  the State.” In addition, the Minister proposed “to place an exclusion order preventing the appellant from entering the State for a period of up to five years from the date of [the] removal”.

Ultimately, despite representations from his legal representative a removal and exclusion order issued in 2014 by the Minster for Justice. A review was requested of this order in 2015 and this decision was re-affirmed. This decision was judicially reviewed, was settled and ultimately remitted to the Minister for re-decision.

In 2016 the Minister redecided the matter and again came to the decision a refusal arose. In refusing the  appellant the reliefs sought the Minister referred to the fact that there was no evidence on file that the appellant had “undertaken any sex offenders’ therapy” and concluded that the appellant “could potentially pose a future risk of re-offending”. They further submitted that the appellant’s removal from the State would not cause egregious hardship for the appellant “in terms of the loss of existing  friendship/social ties or future employment opportunities.” Finally under the heading “Family Life” it was concluded that the appellant’s removal from the State would not cause an insurmountable disruption for the appellant’s family unit.

Judicial review proceedings were then initiated by the appellant’s solicitor. In 2019 Mr Justice Humphreys ultimately dismissed the reliefs sought which was then appealed by the appellant’s solicitors.

Despite a number of interventions in the interim both on behalf of the Minster and the solicitor the Minster in 2020 re-affirmed that they were is satisfied that the appellant’s “personal conduct is such that it would be contrary to public policy not to make you subject of the following requirements”.

Clarification of the Appropriate Test to be Applied in Deciding Where Expulsion and or Removal is Justified

Mr Justice Hunt noted in considering whether or not an expulsion is justified pursuant to Articles 27 and 28 of the Citizens Rights Directive, the question for the Minister is whether the person represents  a “genuine, present and sufficiently serious threat” and that the overarching test governing the area is one of proportionality.[1]

He notes that depending on the duration of a citizen’s residence within a host state, different levels of justification are required. Mr Justice Hunt also notes that the framework of analysis for removal and expulsion orders are set out in Paragraphs 28-34 the decision of the Grand Chamber of the Court of Justice of the European Union in the PI decision.[2]

Ultimately Mr Justice Hunt identifies[3] and provides a brief narrative around the factors which the Minster maker must have regard to the following factors in deciding whether or not to issue a removal or expulsion order.

1. Examination of the specific nature of the offence committed by the individual:
   Mr Justice Hunt noted that the characteristics and seriousness of each offence should be identified on a case by case basis. He further noted that while the gravity of the particular offence in addition to the category of the offence is important, this must be considered by reference to the background and duration of the offence and conduct on an individual basis.
2. Assessment of propensity to re-offend
   Mr Justice Hunt noted that there should be an assessment of whether the individual represents a genuine and present threat and that regard should be had to the existence of a propensity for the individual concerned to act in the same way in the future.
3. The assessment of propensity should be kept up to date
   Importantly, it was determined that where an expulsion measure has been adopted as a penalty or legal consequence of a custodial penalty but is enforced more than two years after it was issued, the Minister must be satisfied that the individual concerned is currently and genuinely a threat to public policy or public security and ascertain whether there has been any material change in the circumstances since the expulsion order was issued.
4. Length of residence in the Host State
   Mr Justice Hunt noted that the Minster must take account of how long the individual concerned has resided on its territory pursuant to Article 28 of the Citizens Rights Directive and notes that a decision cannot be taken to exclude an EU Citizen unless the appropriate legal test appropriate to the length of the individual citizen’s residence is determined.
5. Other personal and family circumstances:
   Finally Mr Justice Hunt noted that there needs to be an assessment, as required by Article 28(1) of the Citizens’ Rights Directive that an individuals age, state of health, family and economic situation, social and cultural integration and the extent of their links with their home country of origin needs to be considered in any given case.

In finding against the Minster Mr Justice Hunt held that the matters raised in the judgment were not scrutinised in both the 2016 review and the High Court judgment in a proportionate manner or in some cases at all. He makes a number of interesting observations about the Minister’s failure to appropriately examine the case with reference to very specific and important factors. He notes for example:

• The lack of any reference to the length of the Appellant’s residence in the jurisdiction and whether this was considered at all other than by general reference to ‘public policy’ test.
• The lack of any consideration at all as to whether the removal would cause “insurmountable disruption” or “egregious hardship” to the Appellant’s private and family life
• The drawing of adverse from the Appellant’s return to his Home State without consideration of the proportionality requirement

Maintenance of Public Order and Considering in What Constitutes Serious Grounds of Public Policy:

Mr Justice Hunt examined the decision of the European Court of Justice in Calfa[4]  and the decisions of Ms Justice O’Regan of the High Court in Rola v. Minister for Justice and Equality[5] and M.S. v. Minister for Justice and Equality.[6] Those decisions concerned removal and exclusion orders which issued to Polish nationals who had permanent residence in Ireland but who pled guilty to offences of cultivating marijuana plants worth over €97,000 and received sentences of 3 years imprisonment with 1 suspended. Ms Justice O’Regan in that decision held that the Minister was entitled, as indicated in abovementioned Calfa decision that:

 “…the use of drugs constitutes a danger for society such as to justify special measures
against foreign nationals who contravene its laws on drugs” , in order to maintain public
order”

Mr Justice Hunt ultimately held that the judgments were not authority for the proposition that the decision-maker may dispense with the necessity to show that regard was had to the general principles and protections against expulsion. Rather he acknowledged that a margin of appreciation can be afforded to a decision maker there was still a need to have been a proportionate assessment of risk and a reasoned engagement with the factors outlined.

Conclusion:

The decision of Mr Justice Hunt has provided a much welcome clarification of the various principles and procedural protections which adhere to Applicants who are stuck in the removal order process. It is hoped that this decision will lead to better and more transparent decisions being made by the Minister with the rights of Applicants being appropriately considered in accordance with European Law. It also offers guidelines to Applicants as to the type of arguments they need to focus on in order to try and overturn or avoid a removal or exclusion order.

Should you be affected by a removal or exclusion order or a proposal to remove or exclude please do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie.

[1] Page 35 Decision of Mr Justice Hunt

[2] P.I. v Oberbürgermeisterin der Stadt Remscheid (Case C‑348/09) EU:C: 2012:300 (“P.I.”)

[3] Page 36 Decision of Mr Justice Hunt

[4] Case C-348/96  [1999] ECR I-II EU:C:1999:6

[5] [2016] IEHC 811

[6] [2016] IEHC 762