The High Court has refused a Polish national’s application for judicial review of a Ministerial decision reaffirming a removal order against him and a five-year exclusion period.
Mr Justice Keane delivered the judgment on 28 June 2019. The challenge concerned a review decision made on 4 October 2016 under the European Communities (Free Movement of Persons) Regulations 2006. The applicant sought to have that decision quashed and argued that the regulations failed to provide the appeal rights required by European Union law.
The order followed the applicant’s 2013 conviction for sexual assault arising from an incident in Dublin in 2006. A jury acquitted him of rape and convicted him of sexual assault. He received a two-year prison sentence, with the final six months suspended. The judgment said the applicant had no other recorded convictions before or after the offence.
The judge rejected the argument that the State’s review and judicial review procedures failed to meet the procedural safeguards in the EU Citizens’ Rights Directive or the EU Charter of Fundamental Rights. He also rejected the applicant’s challenges to the Minister’s assessment of future risk, the description of the offence, the inference drawn from the applicant’s return to Poland, and the proportionality assessment.
The applicant argued that the Minister had wrongly treated his conduct as rape. The judge found that the challenged passage referred to a separate case involving rape and that the decision, read as a whole, repeatedly identified the applicant’s conviction as sexual assault. The judge also said the jury’s sexual assault verdict did not amount to a rejection of the complainant’s account.
The applicant further argued that the Minister had no basis to find a propensity to reoffend. The judge disagreed, holding that the Minister could rely on the serious criminal conduct and that comments attributed to the sentencing judge could not establish the absence of future risk. The applicant had not produced the sentencing transcript, and the judge said that even the reported comments about good character would not amount to a risk assessment.
A separate argument that the Minister had failed to explain why the exclusion period was five years was not considered. The judge said the applicant had not obtained leave to raise that ground.
The court refused the application for judicial review. It did not quash the Minister’s review decision or grant the requested declaration.