K v Minister for Justice (Approved)

Factual and Procedural Background

The Applicant, a Lithuanian national residing in the State since February 2017, was convicted in February 2020 of multiple criminal offences related to drug cultivation and sentenced to imprisonment. The Respondent, the Minister for Justice, issued Removal and Exclusion Orders against the Applicant in January 2023, which were affirmed following a review decision in March 2023 under the European Communities (Free Movement of Persons) Regulations 2015 ("the 2015 Regulations") and the Citizens Rights Directive. The Orders required the Applicant's removal from and exclusion from the State for a period of three years. Notifications accompanying the Orders specified dates for the Applicant to present to the Garda National Immigration Bureau to make arrangements for removal. The Applicant sought judicial review challenging the validity and legality of these Orders, particularly contending that the Orders failed to specify the period within which he was required to leave the State and that the Minister failed to properly assess his rights under Article 8 of the European Convention on Human Rights (ECHR). Leave to apply for judicial review was granted by the High Court on 26 June 2023.

Legal Issues Presented

1. Whether the Removal Order was invalid for failing to specify a period within which the Applicant must leave the State, contrary to Regulation 20 of the 2015 Regulations.
2. Whether the Exclusion Order was invalid for failing to specify the exclusion period, contrary to Regulation 23 of the 2015 Regulations.
3. Whether the Minister acted ultra vires and unlawfully by omitting the specification of the required periods in the Orders.
4. Whether the Minister failed to provide adequate reasons for the duration of the exclusion period imposed.
5. Whether the Minister erred in law and fact by relying solely on the Applicant's criminal convictions without proper consideration of rehabilitation and proportionality, including compliance with Article 8 ECHR rights.
6. Whether the procedural and substantive requirements under the 2015 Regulations and the Citizens Rights Directive were met.

Arguments of the Parties

Applicant's Arguments

• The Removal Order is invalid as it does not specify the period within which the Applicant must leave the State, violating Regulation 20(2) of the 2015 Regulations and resulting in legal uncertainty.
• The Exclusion Order similarly fails to specify a definite exclusion period, rendering it invalid and contrary to Regulation 23 of the 2015 Regulations.
• The Minister acted ultra vires by failing to include these periods and did not comply with required forms under the Regulations.
• The Minister failed to provide reasons explaining why the maximum exclusion period of three years was imposed, lacking a reasoned proportionality assessment.
• The Minister's decision was based solely on the Applicant's prior criminal convictions without proper consideration of his rehabilitation, employment, family ties, or changed circumstances.
• The Minister failed to properly assess the Applicant’s rights under Article 8 ECHR, including whether those rights were engaged and if any restrictions were justified.
• The Applicant was not given an opportunity to respond to adverse findings concerning his alleged propensity to re-offend, breaching fair procedures.

Respondent's Arguments

• The absence of a specified date on the face of the Removal Order does not invalidate it, as the Order must be read in conjunction with accompanying notifications that provide the relevant dates and details.
• The reference to "up to 3 years" in the Exclusion Order is not uncertain when considered alongside the notifications, which clarify the exclusion period and commencement date.
• The Minister provided adequate reasons for the Orders, including the basis for the three-year exclusion period.
• The Minister lawfully exercised discretion under the 2015 Regulations, and the decisions were proportionate and reasoned.
• The Applicant received sufficient information to understand the Orders and their implications, with no claim made that the documentation was unclear or ambiguous.
• The Minister appropriately considered the Applicant’s criminal conduct, the manner in which offences were committed, and the threat posed to public policy and security, consistent with relevant case law.
• The Minister’s assessment of Article 8 ECHR rights was adequate and proportionate, finding that removal and exclusion would not unduly interfere with the Applicant’s family life.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AP v Director of Public Prosecutions [2011] IESC 2	Confines judicial review to grounds on which leave is granted and requires precise grounds to be stated.	The court emphasized that the Applicant was confined to the grounds in the leave order and could not rely on additional grounds not granted leave.
F.P. v Minister for Justice [2002] 1 I.R. 164	Form of deportation order may be satisfied by accompanying notification; no requirement that date be in the order itself.	The court held that the statutory obligation to notify reasons and dates may be fulfilled by letter accompanying the order, supporting the Minister's approach.
MAK v The Minister for Justice and Equality [2018] IESC 18	Confirmed F.P. regarding form of deportation orders and notification; addressed proportionality and procedural fairness.	The court distinguished deportation orders from removal orders and noted the Minister's discretion and the adequacy of accompanying documentation.
Mirga v GNIB and Minister for Justice & Equality [2016] IEHC 545	Removal orders must allow at least one month to leave State unless urgent; lack of specific date in notice does not invalidate it.	The court rejected the argument that absence of a specific date vitiated the order, emphasizing the directive's language of "not less than one month."
J.B. v The Minister for Justice and Equality & Ors [2022] IECA 89	Criminal offences may justify removal on grounds of public security if offences have particularly serious characteristics.	The court applied CJEU principles to uphold removal based on the manner in which offences were committed, supporting the Minister's decision.
Balc & Ors v Minister for Justice [2018] IECA 76	Requirement for reasons in fixing exclusion periods and proportionality assessment.	Referenced in relation to adequacy of reasons for exclusion period and proportionality, distinguishing cases where rehabilitation was not considered.

Court's Reasoning and Analysis

The Court examined the statutory framework under the 2015 Regulations and the Citizens Rights Directive, focusing on the requirements for Removal and Exclusion Orders and their accompanying notifications. It found that although the Removal Order did not specify a removal date on its face, the notifications provided clear and sufficient information, including a specific date for the Applicant to present to the GNIB and a minimum period of one month to leave the State, in compliance with Article 30 of the Directive.

Regarding the Exclusion Order, the Court determined that the phrase "up to 3 years" did not create uncertainty when read with the notifications, which clarified the exclusion period as three years commencing from the date of removal. The Court further held that the form requirements in the Regulations are directory rather than mandatory, and substantial compliance was achieved.

The Court rejected the Applicant's contention that the Minister failed to provide adequate reasons for the duration of the exclusion period, noting that no legal requirement exists to explain why a particular period is chosen over another. It also found that the Minister conducted a proportionality assessment under Article 8 ECHR, considering private and family life factors, and concluded that removal and exclusion were not disproportionate to the legitimate aim pursued.

The Court addressed the Applicant's argument concerning reliance solely on prior convictions, holding that the Minister considered the manner in which offences were committed, which revealed serious characteristics justifying removal on public security grounds. The Court referred to relevant case law supporting this approach.

The Court further noted that the Applicant did not claim any lack of understanding of the Orders or notifications, and the procedural requirements, including the opportunity to make representations, were satisfied.

Applying settled principles of judicial review, the Court confined the Applicant to the grounds on which leave was granted and found no basis to quash the reviewed decision affirming the Removal and Exclusion Orders.

Holding and Implications

The Court REFUSED the Applicant's application for judicial review, upholding the Minister's reviewed decision dated 23 March 2023 affirming the Removal and Exclusion Orders.

The direct effect of this decision is that the Applicant remains subject to removal from and exclusion from the State for a period of three years. No new legal precedent was established, and the ruling confirms the validity of the Minister's approach to specifying removal and exclusion periods through accompanying notifications rather than within the Orders themselves, provided that the overall documentation is clear and comprehensible.