The Court of Appeal has quashed removal and review decisions concerning a Romanian man who was ordered to leave Ireland after a sexual assault conviction, finding that the Minister’s proportionality assessment did not properly address his prospects of rehabilitation and that no reasons were given for a five-year exclusion period.
The court remitted the matter to the Minister for fresh consideration. It did not decide whether a new removal order should be made. Its judgment addressed the legality of the decision-making process, rather than reconsidering the case on its merits.
The man had lived in Ireland for more than five years and was entitled to permanent residence. He received a three-year prison sentence, with the final 18 months suspended, for a serious sexual assault. The court noted that this was his first offence. His wife and daughter continued to live in Ireland after he was removed in May 2016.
The Minister made the removal order in February 2015 and imposed a five-year exclusion period. A departmental review upheld the order. The High Court refused the family’s judicial review application in February 2016, and the family appealed.
The appeal court rejected several of the family’s arguments. It held that seeking an internal administrative review did not prevent a challenge to the original removal order by judicial review. It also found that the available administrative review and judicial review procedures met the requirements of the EU directive, and that the Minister had applied the correct legal test for removing someone entitled to permanent residence.
But the court found a defect in the proportionality assessment. The decision-makers had considered the man’s treatment and supervision arrangements, including his suspended sentence conditions, but had not properly weighed whether removing him would harm his rehabilitation prospects in Ireland. The court said the assessment should consider whether public protection required removal or whether he could rehabilitate in Ireland while complying with the sentence conditions and receiving support from his wife and daughter.
The court also held that the Minister had to explain why a five-year exclusion period was imposed, and why that duration was chosen. The availability of a later application to amend or revoke the order did not replace the need to give reasons for the original decision.
The appeal was allowed. The removal decision and the review decision were quashed, and the matter was returned to the Minister for fresh consideration in light of the judgment.