A's Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 19 January 2015 |
| Neutral Citation | [2015] NIQB 4 |
| Date | 19 January 2015 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2015 |
1
Neutral Citation No. [2015] NIQB 58 Ref:
GIL9682
Judgment: approved by the Court for handing down Delivered:
26/06/2015
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
A’s Application [2015] NIQB 58
IN THE MATTER OF AN APPLICATION BY A
FOR JUDICIAL REVIEW OF A DECISION BY THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
________
GILLEN LJ
[1] I have anonymised the name of the applicant (“A”), and his family members
by the use of initials. The reason for doing this is that children are involved in the
nature of this application. I make an order providing that no person shall publish
any material which is intended or likely to identify the applicant or any other child
involved in these proceedings except insofar (if at all) as may be permitted by
direction of the court.
Introduction
[2] In this matter the applicant seeks judicial review in respect of part of a
decision (“the impugned decision”) by the Secretary of State for the Home
Department (“the respondent” or “the SOSHD”) dated 20 November 2014, contained
in a decision letter of that date, whereby the respondent certified his removal from
the UK (“the certification decision”) pending determination of his appeal against a
decision to deport him on grounds of public policy following recent convictions for
driving while disqualified and using a vehicle without insurance. The respondent
has made this impugned decision on foot of the amendments made to the
Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”)
specifically with reference to Regulation 24AA of the 2006 Regulations.
[3] Mr Egan appeared on behalf of the respondent. Mr McQuitty appeared on
behalf of the applicant. I pay tribute to the care and thoroughness with which the
respective arguments, both written and oral, were presented to this court.
2
[4] Leave was granted by Treacy J on 3 March 2015 on limited grounds which I
have set out at paragraph [25] of this judgment.
Factual background
[5] The applicant is a Lithuanian national who claims to have first arrived in
Northern Ireland in February 2006. He states that he returned to Lithuania in
December 2006 to face a criminal charge of “non-severe health impairment” in
respect of which he was convicted, serving a five month period of imprisonment. At
the conclusion of this he returned to Northern Ireland on 22 May 2007.
[6] His residence in Northern Ireland since his return has been punctuated by
five separate periods of imprisonment in this jurisdiction with the effect that he has
not lived here continuously for a period of five years and so he has not acquired a
permanent right of residence in accordance with Regulation 13 of the Immigration
(EEA) Regulations 2006.
[7] The parties were unable to agree, and it remained a matter of dispute, as to
the precise number of months that he had actually served in prison since the birth of
his daughter in July 2006. It is the respondent’s contention that the applicant is a
prolific offender who has served a total of ten months’ imprisonment during this
period whilst the applicant contends that in the event he was only in prison for
relatively short periods totalling about five months over the seven years of his
daughter’s life. I conclude that the correct figure is probably somewhere in between
these two assertions. The relative importance of his period in prison is that the
respondent, in an affidavit of 2015 of Andrew Maighan, Executive Officer,
Immigration/ Enforcement department of the Home Office, at paragraph [6], relies
on these periods to rebut the assertion that the applicant had moved to Northern
Ireland to start a new life with his partner at the conclusion of a period of extensive
and prolonged offending in Lithuania and to declare that these periods of
imprisonment illustrate that he regularly has been apart from his daughter. On the
other hand the applicant contends that these were such short periods that they do
not represent an absent father and, in particular, since his release from jail on 19
February 2015, he has been living without issue or incident with the family,
following the earlier periods of imprisonment and immigration detention in 2014.
[8] The applicant’s family, as set out in his grounding affidavit, comprises:
• His partner (who has filed an affidavit dated 8 January 2015) whom
the applicant asserts suffers from depression and who has a criminal
record also, albeit less significant than that of the applicant. The
respondent asserts that at the time the decision was made to deport the
applicant, there was no evidence from any medical report to this effect
and the present evidence appears to amount to a work “sick line”
issued by the applicant’s GP and dated 4 December 2014, after the
decisions had been made.
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