Man claims €2000 penalty over travelling to Portugal breaches rights

An EU citizen living and working here is seeking to challenge Covid-19 public health regulations under which a €2,000 fixed penalty notice was issued to him after he travelled to Portugal to help renew his family's permission to remain there.

Imran Ali, who has Portugese citizenship, claims the regulations breach Irish and EU law in being insufficiently clear to enable him foresee the consequences of his travelling to an airport to leave the State to assist his wife and two sons to extend their immigration permission to remain there.

There was no means by which he could assess whether the purpose for which he was leaving the State constituted a “reasonable excuse” within the meaning of the relevant regulations, he claims.

He claims he engaged in lawful activity and the regulations unlawfully, irrationally and disproportionately restrict his travel and family rights under the Constitution, the European Convention on Human Rights Act 2003 and EU law .

The regulations effectively prohibit persons living here from leaving the State without a reasonable excuse but no such reasonable excuse is required by law to enter the State, he claims. No regard is had to levels of Covid-19 transmission of the area of the EU to which a person is travelling or to the area of the State from which they are travelling, he also says.

In court documents, it was stated Mr Ali's wife and children remained in Portugal when he came to Ireland earlier this year to work. He is now living in Ballymun and working in a restaurant in Dublin and intends his family to join him when he finds suitable accommodation for them.

On April 19th last, he says he travelled to Portugal to assist his wife and sons to extend their immigration permission, attended the appropriate office in Portugal on May 4th and the permissions were extended.

While at Dublin Airport on April 19th, he says, after a Garda asked him where he was going, he showed the Garda emails to explain where he was going and the reason why, and was permitted board the aircraft.

On May 6th, he received a €2,000 Fixed Penalty Notice in respect of an alleged offence committed, contrary to Section 31 A (6) (a) and Section 31A (12) of the Health Act 1947, as amended, on April 19th last at Dublin Airport. The notice informed him, if he paid the €2,000 within 28 days, he would not be prosecuted.

He completed a fixed penalty notice cancellation request form but was later told his appeal had been refused. That refusal letter was received after the 28 days for payment of the €2,000 had expired and he has been informed he will be prosecuted. He claims a fixed penalty of €2,000 and a fine not exceeding €4,000 and/or imprisonment for up to one month, are disproportionate and in breach of the Constitution and Charter of Fundamental Rights of the EU.

Represented by Michael McNamara SC, instructed by BKC Solicitors, Mr Ali sought leave on Monday to take judicial review proceedings aimed at quashing the notice and prohibiting his prosecution.

Mr Justice Charles Meenan, noting the "substantial breadth" of the attack on the regulations, directed the respondents – the Minister for Health and the State — be put on notice of the application for leave to bring the judicial review proceedings.

He made directions for exchange of affidavits between the sides and granted a stay restraining an application for a summons against Mr Ali in respect of the alleged offence. The stay applies until the matter returns to court in October but the respondents have liberty to apply, on 72 hours notice, to have that stay lifted.