The High Court has quashed a decision affirming removal and exclusion orders against a Latvian national, finding that the review process breached fair procedures. The court did not decide the merits of the review; it said the review remained to be concluded.
The judgment, delivered by Mr Justice McDermott on 12 December 2014, concerned a judicial review brought by the man, his wife and their minor child. The Minister for Justice had ordered the man to leave Ireland and barred him from re-entering for ten years from his removal. A review affirmed those orders on 17 June 2013. The man had already been removed from Ireland on 18 June 2013.
The court rejected challenges to the substance of the Minister’s assessment. It said the review had considered the man’s serious rape convictions, family circumstances, residence, rehabilitation submissions and other relevant factors. The court’s role was to assess whether the review complied with the governing law and procedures, not to decide the merits itself.
But the review relied on prison records describing eight disciplinary incidents between 2007 and 2010, including alleged threats and fighting. The records had not been disclosed to the man, and he had no chance to respond. The judge found the material reflected adversely on him and had assumed significance in the case. The Minister was obliged to disclose it and allow submissions, the court held; failing to do so breached fair procedures and fundamentally flawed the order.
The court also found a separate procedural flaw. A higher executive officer had recommended the original removal order and later recommended that it be upheld on review. Although a more senior principal officer made the final review decision, the judge said the higher executive officer’s participation was significant and could give rise to a reasonable suspicion that the review was not independent. That involvement was contrary to fair procedures and the regulations, and vitiated the decision.
The judge rejected the argument that the short time taken to decide the review, by itself, showed inadequate consideration. He also left unresolved factual conflicts in evidence about the man’s detention before removal, saying they were unnecessary to resolve for the judgment.
The court quashed the 17 June 2013 decision affirming the removal and exclusion orders. The judgment says the review remains to be concluded.