The Court of Appeal has ruled that a review upholding an EU citizen’s removal order was not carried out in accordance with EU law, and proposed to quash that review decision. The court did not quash the original 2014 removal order, and deferred final orders, including whether the matter should be remitted for a further review and who should pay costs.
The judgment, delivered on 7 April 2022, concerns J.B., whose identity was protected by earlier court orders. J.B. was convicted of sexual assault following a jury trial and sentenced to two years in prison, with six months suspended. In December 2014, the Minister for Justice and Equality made a removal order and a five-year exclusion order. A 2016 review affirmed those orders. J.B.’s judicial review challenge was dismissed by the High Court in 2019, and J.B. appealed.
The Court of Appeal rejected the respondents’ argument that the appeal had become moot. Although the Minister had said in 2019 that no assessment of changed circumstances was then proposed, the removal order remained on record. The court said the continuing record and the outstanding High Court costs order gave J.B. a real interest in the appeal. It also noted that the Minister had not assured J.B. the review decision would be disregarded in a future residence-certificate application.
On the substance, the court found the 2016 review’s assessment of proportionality was superficial and cursory. It said the review did not adequately distinguish the single sexual assault conviction from more serious offending, and identified no evidence or expert view supporting its conclusion that J.B. might reoffend. The review also did not address the significant period without reoffending before the 2016 decision, or adequately consider J.B.’s residence, family circumstances and ties to Ireland. The court criticised reliance on tests of “egregious hardship” and “insurmountable disruption” that it said were not part of the applicable EU law framework.
The court also found that the decision-maker questioned whether J.B. would have returned to Ireland without a European Arrest Warrant, despite J.B.’s account in correspondence and affidavit evidence. The review gave no reason for rejecting that account.
The court proposed to grant certiorari quashing the 2016 review decision. It did not make final orders at this stage. The parties were directed to indicate whether J.B. wished to continue pursuing the separate challenge to the review mechanisms, and, depending on that response, to make submissions on remittal and costs. The judgment did not determine those remaining matters.