A judge has quashed a decision by the Minister for Justice requiring a convicted rapist, who is a foreign national, to leave the State after his release from prison and not return for five years.
The man, who cannot be named for legal reasons, had been living in the west of Ireland with his family for several years.
He was convicted of rape at the Central Criminal Court in 2009 and sentenced to six years imprisonment. He took High Court proceedings over the Minister’s decision to exclude him from the State on his release some two years ago.
On his release, he was told by the Irish Naturalisation and Immigration Service that the Minister was contemplating making removal and exclusion orders against him and that it would be against public policy to allow him to remain in the State. He claimed as an EU citizen he is entitled to reside in Ireland.
His lawyers made submissions opposing his removal and later appealed the Minister’s decision. That decision was upheld in October 2013 following a review.
In proceedings against the Minister, Ireland and the Attorney General, lawyers for the man, his partner and their child, argued the decision was flawed because officials at the department who participated in the decision making process at the earlier stage were also involved in the review.
This, it was argued, breached the man’s rights to fair procedures and gave rise to an apprehension of bias.
Private life
The man also argued the decision was unlawful on grounds including it was solely based on his rape conviction and interfered with his right to private life under the European Convention of Human Rights and with the rights of his Irish born child.
The State denied the claims.
In his judgment, Mr Justice Paul McDermott said the Minister’s decision was fundamentally flawed because the man’s constitutional right to fair procedures were not complied with.
The involvement of officials in the appeal went “contrary to the spirit and intention of the regulations which require an independent process of review. ”
The officials involvement in the review gave rise to “a reasonable apprehension of bias in the making of the review decision”.
The judge also found the Minister did not make any legal error when assessing the man’s threat to the public. The rights of the man’s child were fully taken into consideration by the decision makers, he added.