The High Court has quashed a decision requiring D.S., a Lithuanian national, to leave Ireland and excluding him from the State for five years, finding that the internal review process was fundamentally flawed because two officials involved in the original recommendations also contributed to the review.
Mr Justice McDermott delivered the judgment on 20 October 2015 in judicial review proceedings brought by D.S., his partner R.S. and their child, M.S. The court found that the officials’ recommendations were heavily relied on at both stages and gave rise to a reasonable apprehension that D.S.’s case and opportunity for a fair hearing had been compromised. The judgment said that the process failed to provide an independent review. It set aside the decision on that basis.
The case concerned a Ministerial removal order dated 9 August 2013, affirmed after review on 15 October 2013. The original order imposed a ten-year exclusion period, reduced to five years on review. The court rejected the suggestion that the increase to ten years had been inadvertent, finding that the record showed it was a deliberate change based on the seriousness of the offence.
D.S. had been convicted of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and sentenced to six years in prison. The Minister’s decision also referred to other convictions and to his having left Ireland before trial and returned on foot of a European Arrest Warrant. D.S.’s submissions included that removal would disrupt his family life with R.S. and M.S., who lived in Galway, and that he regretted the offence.
The court did not find subjective bias. It also rejected the argument that the Minister’s decision was unlawful because it relied solely on the rape conviction: the judgment said the Minister could consider the offence’s seriousness, D.S.’s attitude and conduct, and other convictions when assessing public policy. It was satisfied that the relevant family and child welfare matters had been considered. The court did not need to address the remaining grounds, including claims that the decision was irrational or disproportionate.
The judgment records that D.S. was surrendered to the Lithuanian government under the European Arrest Warrant Act 2003 after the substantive hearing. It does not state what further steps followed the quashing of the removal decision.