‘Superficial’ assessment of EU citizen’s risk to State contained errors, appeal court finds

The Court of Appeal has granted an order quashing a 2016 decision that had affirmed a removal order for a European Union citizen on grounds that they had a sexual assault conviction.

The person, whose nationality, sex and current status have been redacted from the judgment, was convicted in 2013 for sexually assaulting someone in 2006. The following year the Minister for Justice and Equality notified the individual of a removal order and five-year exclusion order.

In a judgment on behalf of the three-judge court on Thursday, Mr Justice Tony O’Connor said the analyses of various matters relevant to assessing the person’s risk were “superficial and cursory and contained errors” regarding the principles to be applied under the 2004 Citizens’ Rights Directive.

The Court of Appeal decision overturns that of the High Court, which had upheld the Minister’s 2016 review of the 2014 removal order after finding the Minister was “entitled to rely upon the serious criminal behaviour”.

The person had not been granted leave of the High Court to challenge the original 2014 decision.

Mr Justice O’Connor said the High Court judge “erred in law” in determining the 2016 decision-maker’s approach to the removal of the person from the State was adequate and proportionate.

The judge noted there had been an argument that the case had become moot due to the Minister contending she would not carry out a fresh risk assessment and therefore the original 2014 removal order could not be enforced. However, he found the appeal had relevance, as the record of the removal order remains and could be relevant in the future.

Restrictions to the European Union fundamental right to freedom of movement and residence of Union citizens on grounds of “public policy, public security or public health” must be proportionate, noted the judge.

The 2004 Directive stipulates that previous convictions “shall not in themselves” constitute such EU rights restrictions. A person must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

Before taking an expulsion decision, a member state must consider a person’s health, family and duration of residence, among other things.

The EU citizen, represented by Michael Lynn SC and Carol Doherty BL, instructed by solicitor Peter Connolly, appealed on grounds including that the 2016 decision-maker had failed to engage properly with this requirement and that a proportionality assessment had not been properly conducted in accordance with the 2004 Directive.

Mr Justice O’Connor said the 2016 review does not refer to any evidence or expert view to conclude the person was likely to reoffend or the extent of the threat, if any, the person posed. In his view, matters were not scrutinised in a proportionate way, with some relevant factors considered only briefly or omitted from the assessment entirely.

The decision maker’s use of the phrase “a sufficient enough threat” does not accord with the test under the 2004 Directive, the judge went on.

Mr Justice O’Connor said the 2016 decision-maker and the trial judge had “effectively equated” the sexual assault committed by the person with a verdict of rape. He said the assessment needed to be individualised to the person’s single incident offence of sexual assault.

The judge stressed, “lest there be any misunderstanding”, that he was not underestimating the gravity of the person’s conduct.

It was also “relevant”, he said, that a decade had elapsed between the offence and the 2016 review decision.

Further, the decision-maker did not sufficiently consider other factors, including the effect a removal order would have on the person’s family, which included a partner and young child, who was born in Ireland.

The judge proposed to grant an order quashing the 2016 review decision, although final orders regarding whether the matter should be remitted will be made following further submissions from the parties.

Ms Justice Úna Ní Raifeartaigh and Ms Justice Power indicated their agreement with the judgment.