The High Court found that the Minister for Justice and Equality had erred in calculating how long Romanian national Ionel Sandu had lived in Ireland before making an expulsion order against him. The court said the order should be quashed, but deferred deciding whether to remit the matter until it heard from the parties.
Mr Justice Mac Eochaidh gave judgment on 31 July 2015 in judicial review proceedings brought by Mr Sandu. The dispute concerned the enhanced protection against expulsion under Article 28(3)(a) of the EU Citizenship Directive, which applies where a Union citizen has lived in the host state for the preceding ten years.
The Minister’s officials calculated Mr Sandu’s residence from 24 April 2002, when he was granted permission to remain based on his parentage of an Irish citizen child. They also excluded time in prison. The Minister concluded that he had not completed ten years’ legal residence when the removal order was made on 3 July 2013.
Mr Sandu had applied for asylum in March 2001. He withdrew that application in June 2001 while seeking permission to remain based on his daughter’s Irish citizenship. The judge said the relevant authority had not warned him that withdrawing his asylum claim would end his entitlement to remain, and found there was at least implied permission for him to stay while his residence application was pending.
The judgment said the Minister had asked when Mr Sandu first received formal permission to remain, rather than whether he had lived in Ireland for the relevant period. Applying the Court of Justice of the European Union’s guidance, the judge said the ten-year period was to be counted back from the expulsion decision, with imprisonment discounted. In this case, the inquiry should have considered whether Mr Sandu had lived in Ireland for ten years before his imprisonment began on 16 November 2011.
The court also said physical presence alone was insufficient. A decision maker had to consider all the circumstances and what the person was doing during the relevant period, including whether EU treaty rights were exercised in the first five years.
The judgment concluded that the Minister had erred in calculating Mr Sandu’s residence and said an order quashing the expulsion order would be made. It did not settle the form of that order: the judge said he would hear the parties on whether the matter should also be remitted.