((iii) Proportionality of review decision
(a) Appellant
19. . The appellant submits that the trial judge erred in finding that the review decision was proportionate, pointing to the mitigating
factors listed above, the nature of the offence (assault), his status as an EU national with permanent residence and contends that he
is generally a person of good character who made a grave mistake while intoxicated. He asserts that his behaviour does not justify
the removal and exclusion order, not constituting conduct that represents a sufficiently serious threat to society such that it would
be contrary to public policy or would endanger public security to allow him to remain in the State and exercise his right to free
movement.
20. . The appellant refers to Rutili v. Minister of the Interior [1975] ECR 1219 where it was held that while Member States are, inprinciple, free to determine the requirements of public policy, this must be interpreted strictly and restrictions cannot be imposed
unless an individual’s “presence or conduct constitutes a genuine and sufficiently serious threat to public policy”.
21. . The appellant refers to MV v. Minister for Justice [2016] IEHC 432 and accepts that recidivism can constitute a sufficientlyserious threat to public policy but reasserts that he is at a low risk of recidivism.
22. . The appellant further refers to Case C-482/01 and Case C-493/01 Orfanopoulos and Ors and Oliveri v. Land Baden - Württenberg
[2004] ECR I-5257 where the CJEU stated that national authorities “must assess on a case-by-case basis whether the measure or
the circumstances which gave rise to that expulsion order prove the existence of personal conduct constituting a present threat to
the requirements of public policy” and that, as a general rule, such a “present threat” must exist at the time of expulsion. The case
also refers to the principle of effectiveness, stating that domestic legal rules must not make it impossible or excessively difficult to
enforce rights derived from EU law. The CJEU further states that EU nationals are entitled not to be subject to expulsion save in
extreme cases provided pursuant to Directive 64/221 and that national courts, in reviewing the lawfulness of an expulsion order, must
be able to consider factual circumstances occurring after the removal order was made which may demonstrate a cessation or
substantial diminution in the risk that an individual’s conduct poses to public policy.
23. . The appellant submits that as his offence was an isolated incident, his removal and expulsion is not in line with Directive
2004/38/EC which provides that “previous criminal convictions shall not in themselves constitute grounds for taking such measures…”
24. . The appellant submits that the trial judge may have given too much weight to the facts of the assault and asserts that a single
offence of this nature should not, 2 years later, be considered to make the appellant a present threat to the requirements of public
polic y.
25. . The appellant refers to two judgments of McDermott J., Kovalenko v. The Minster for Justice and Equality [2014] I.E.H.C. 624
(which in turn considered the dicta of the CJEU in R. v. Bouchereau [1977] ECR 1999) and D.S. v. The Minister for Justice and
Equality [2015] IEHC 643, both of which concerned an offence of rape, to the effect that while a risk of recidivism may be a
relevant or even central consideration, an offence may be sufficiently serious in and of itself to warrant the removal of an individual.
The appellant submits that his sole offence does not give rise to a presumption of recidivism, nor is it an offence as grievous as rape
to be considered to be sufficiently serious in itself to warrant his removal.
(b) Respondent
26. . The respondent submits that full consideration was given to all material facts in the review decision in finding that that the
appellant committed a serious assault warranting his removal from the State, having regard to the relevant Garda report in which the
violence of the attack was detailed, with the victim having been punched and kicked in the face several time and sustaining a broken
nose along with cuts and bruises. It was also highlighted that the appellant attempted to blame the victim, stating that he was acting
in self-defence and submitted alcohol was a mitigating factor. The respondent asserts that the review decision assessed the impact
that the orders would have on the family and private life of the appellant; under the heading ‘Private Life’ the respondent accepts
that while there will be an interference with the private life of the appellant it is “necessary for the prevention of a genuine, present
and sufficiently serious threat affecting one of the fundamental interests of society” and that no other less restrictive measures
would achieve this aim.
27. . The respondent submits that the removal order was in line with Article 27(2) of Directive 2004/38/EC, which does not preclude a
Member State from considering the circumstances surrounding a conviction in the context of deciding whether to impose a removal
order and that in the current case, it was the totality of facts, including those which gave rise to the appellant’s conviction and his
conduct during the investigation, which led to the decision to remove him from the State.
28. . The respondent refers to Bouchereau [1977] ECR 1999 and Re Donatella Calfa (Case C-348/96) to support the position that itis permissible for the respondent to take into account the circumstances giving rise to the appellant’s conviction as evidence of his
personal conduct in assessing whether he represents a threat to the requirements of public policy.
29. . The respondent further refers to D.S. where McDermott J. found that the respondent was entitled to take into account the
serious nature of the offence to find that it constituted a threat to public policy as well as the surrounding circumstances of the
offence (the violence of the assault) and the attitude of the appellant and absence of remorse and was also satisfied that the
respondent had not: -
“considered the matter solely by reference to the fact that the first appellant had been convicted of a serious offence
and served a custodial sentence. His attitude to the s. 4 offence and his victim, further convictions and the
consequences that might flow from his removal from the State were taken into account”.
30. . The respondent also refers to the decision given in Smolka wherein O’Regan J. stated that it was for the individual decision maker
in the Member State to determine whether the offence committed with or without additional factors constituted serious grounds of
public policy.
page4 ⇓
(
iv) Want of reasons for exclusionary period
(a) Appellant
31. . The appellant submits that the trial judge erred in determining that the appellant was not entitled to assert that the decision by
the respondent was defective for want of reasons for the exclusionary period.
32. . At para. 19 of the High Court judgment it is stated: -
“Although the submissions incorporate a complaint that including a period of three years by way of an exclusion order was
incorporated without explanation, the respondent points to the fact that this is not one of the grounds for which leave
was afforded. I have reviewed carefully the Statement of Grounds and the content of Order 84 of the Rules of the
Superior Courts. I agree with the respondent’s submission that condemning the exclusions period or lack of reasoning is
not incorporated in the Statement of Grounds.”
33. . The appellant states that while the issue of the respondent’s failure to give reasons for the exclusion period was not expressly
pleaded in the Statement of Grounds, it came within the ambit of Ground F(1) of their Statements of Grounds on proportionality and
was properly before the High Court.
34. . The appellant submits that the Court of Appeal decision in Balc v. Minister for Justice [2018] IECA 76 applies to the currentapplication, wherein Peart J. held that the respondent must provide reasons for the imposition of an exclusion order as well as the
reasons for the period of exclusion imposed.
35. . The appellant refers to the decision of Mallak v. Minister for Justice [2012] 3 IR 297 wherein the Supreme Court summarised theobligation on the respondent to give adequate reasons as follows: -
“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an
explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving
fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the
underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the
affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the
reasons for the decision are obvious and that effective judicial review is not precluded.”
36. . The appellant further refers to MS v. Minister for Justice and Equality [2016] IEHC 763, in which O'Regan J. found that adecision made by the respondent to uphold a removal order was invalid as a result of the respondent's failure to give reasons why it
was imposing an exclusionary period of three years and also refers to Voivod v. Minister for Justice [2018] IEHC 647 in which
Barrett J. found that the exclusionary period aspect of the respondent’s decision should be quashed due to the lack of reasons
provided for the imposition of the exclusion period.
37. . The appellant submits that the respondent breached his right to fair procedures and the principles of constitutional justice by
failing to give reasons for its decision, in particular the reasons for the necessity of the appellant’s removal as well as the reasons for
the imposition of a three year exclusionary period and the upholding of same on review, as well as what legitimate aims of the State
these decisions were made in pursuance of, and also what grounds of public policy had been threatened. The appellant contends that
the trial judge failed to take into account the lack of reasoning in determining that the appellant was precluded from including the
submissions above regarding this failure.
(b) Respondent
38. . The respondent submits that the appellant is, and was in the High Court, precluded in this appeal from challenging the exclusion
period imposed. It is contended that the appellant made no complaint as to the reasoning for the exclusion period in his proceedings
before the High Court.
39. . Notwithstanding this submission, the respondent contends that Balc can be distinguished from the current application as in same,
there was an extant issue between the parties, with the Court of Appeal stating that the trial judge in Balc, “expressed no conclusion
in relation to the failure to provide any rationale in the decision to exclude Mr. Balc” whereas in the current proceedings, the appellant
did not seek or obtain leave from the High Court to pursue this specific line of argument and the trial judge clearly reached a
conclusion that the argument was not contained in the Statement of Grounds.
40. . The respondent submits, in the alternative, that if this Court finds that the trial judge erred in this regard, only the expulsion
element of the review decision should be remitted to the respondent for reconsideration; as per the approach of Barrett J. in Vovoid.
(v) Attack on the Directive
(a) Appellant
41. . The appellant does not accept the determination by the trial judge that his submissions were an attack on the Directive itself,
contending that his primary submission was that “as the removal order was made on foot of the Directive and involved an issue of EU
law, that decision was required to be made in light of the EU law principle of proportionality”.
(b) Respondent
42. . The respondent submits that the trial judge’s comments on the appellant’s submission appearing to the Court to be an attack on
the Directive were obiter dicta and that the trial judge did not misdirect herself.
Discussion
43. . In light of the authorities, it must be borne in mind that the function of this Court on appeal is primarily directed to an assessment
of the validity of the approach adopted by the trial judge to the aspects of the respondent’s decision which the appellant sought to
impugn. I am satisfied that there was ample evidence before her which entitled her to reach the conclusion that the relevant material
page5 ⇓
had been adequately assessed by the respondent and that the respondent appropriately weighed its decision and same was justified
with particular regard to the principles of proportionality.
44. . The High Court judgment cannot be fairly characterised as making a determination that a review decision in such an application
could not be subjected to a proportionality assessment by a court. The judge explicitly engaged in a proportionality analysis whilst
having due regard to the well-established principle that in administrative decisions the weight to be attached to various factors is
quintessentially a matter for the decision maker (Olakunori (A Minor) v. Minister for Justice and Equality [2016] IEHC 473).
45. . Similarly, the appellant’s submission that the trial judge did not adequately consider the mitigating factors in its assessment of the
respondent’s decision is untenable.
At para. 11 the trial judge states that: -
“The applicant submits that he was convicted of assault only on 10th March, 2015 and pleaded guilty at the earliest
opportunity. He had no previous convictions and two years of the three years six months sentence was suspended. In
addition the applicant secured early release from prison. The applicant acknowledges that at sentencing it was submitted
that that incident had been provoked by the victim and the applicant reacted disproportionately because of an excess of
alcohol. The applicant regretted his actions and acknowledged that same were unacceptable. He submits that they were
entirely out of character in particular with no previous convictions. He asserts that the incident of 9th March, 2014 was
an isolated event, unlikely to ever be repeated and significantly a substantial portion of the sentence was suspended and
he received early release and accordingly on the principle of proportionality it cannot be said that the applicant
represents a genuine present and sufficiently serious threat to the Irish public such that it would be contrary to public
policy or would endanger public security to allow him to continue to reside in the State...”
The trial judge continues at para. 13:
“The applicant asserts that he is generally a person of good character, has no previous convictions, has not been
arrested, charged or convicted of any offence since his release, has been cooperative with An Garda Síochána…”
46. . The trial judge considered all relevant factors, including the mitigating factors submitted by the appellant, in finding that the
review decision was proportionate. While the appellant may be aggrieved with the balance struck by the respondent, it is insufficient
to claim that a decision lacks proportionality on the basis that greater weight ought to have been given to some factors and less to
others – there must be an identifiable consideration that was either relied on by the decision maker and was demonstrably wrong or
else was material and was overlooked in the process of making the decision.
47. . In ISOF v. Minister for Justice, Equality and Law Reform (No 2), [2010] IEHC 457 Cooke J. at para. 10 reiterated hisinterpretation of Meadows: -
“Where the challenge to the decision is based upon the assertion that it has the effect of intruding disproportionately
upon the fundamental rights of those affected by it, it is the duty of the court to assess whether the applicant
demonstrates that it is disproportionate in the sense of being irrational or unreasonable according to the Keegan/O’Keeffe
test. It does so by reference to the evidence, information and documentation available to or procurable by the decision
maker at the time...”
Conclusions
48. . There was evidence before the High Court on which the judge was entitled to rely which demonstrated that the decision of the
respondent was not solely based on the conviction of the appellant but on his personal conduct considered in its totality. Where, as
in this case, an applicant fails to discharge the burden of demonstrating that the proportionality judgment of the decision maker was
unreasonable in the sense identified in Meadows, then the courts ought not intervene. The High Court judge considered the reasons
given by the respondent for the decision in question assessing whether that decision involved an assessment of proportionality. The
trial judge was entitled on the evidence to find that in the review decision, the respondent had considered and recognised that the
proposed orders would interfere with the private life of the appellant and also considered whether the appellant would face hardship if
returned to Romania. It was concluded that he would not. The offence of the appellant was not a trivial one – the respondent was
entitled to have regard to the circumstances of the assault, including the fact that the appellant had been intoxicated – to find that
the appellant's conduct constituted a genuine and serious present risk to public policy in the State at the time the removal order was
made. In substance, the determination of the High Court judge was that the decisions of the respondent were well within the margin
of appreciation conferred on the Minister and, thus, reasonable in the judicial review sense of that term. The approach of the trial
judge was valid and no grounds have been established which would undermine her conclusions.
49. . The trial judge was correct in considering that the arguments sought to be advanced on the basis of the lack of reasons provided
for the imposition of the expulsion order of three years were not properly before the Court as they are not raised in the Statement of
Grounds. In judicial review proceedings, Statements of Grounds exist to narrow and focus the issues before the Court in relation to
the processes by which the decision has been made. If the appellant wished to challenge the expulsion, then same should have been
clearly particularised in their Statement of Grounds.
50. . The submissions in relation to the trial judge’s comments that the appellant’s submission appeared to be an attack on the
Directive itself are merely obiter and not material to the review decision or these proceedings.
51. . Accordingly, in light of the above, I would dismiss the appeal and refuse the reliefs sought.
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