AN CHÚIRT ACHOMHAIRC
THE COURT OF APPEAL
APPROVED - NO REDACTION NEEDED
Court of Appeal Record Number: 2024/264
High Court Record Number: 2023/410JR
Neutral Citation Number: [2025] IECA 122
Binchy J.
Hyland J.
Collins J.
BETWEEN/
K
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE
RESPONDENT
JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 27th day of May 2025
I. Introduction
1. This appeal arises out of an application by way of judicial review to challenge the validity of a removal order and an exclusion order that, in the exercise of the powers conferred upon her by Regs. 20 and 23 respectively of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015, hereafter 'the Regulations'), the Minister for Justice (hereafter 'the respondent') made in respect of the appellant, a national of the Republic of Lithuania and a citizen of the European Union.
II. Factual Background
2. In or about the month of February 2017, the appellant took up residence in the State. After a period of employment, from May 2019 he was in receipt of Jobseekers' Allowance. On 24 August 2019 he came to the attention of An Garda Siochána in connection with the illegal possession of drugs for the purposes of supply. At Castlebar Circuit Court, on 14 February 2020, the appellant was convicted of four offences, namely: possession of drugs valued at €13,000 or more; possession of drugs; possession of drugs for the purpose of sale or supply; and cultivation of cannabis plants. He was sentenced to a term of imprisonment of five years, the final year of which was suspended.
3. On 28 July 2021 the respondent proposed to make a removal order under Reg. 20(1), and an exclusion order under Reg. 23(1) of the Regulations in respect of the appellant. The appellant was invited to make representations, which he submitted in a document dated 1 August 2021 and which he thereafter supplemented at the respondent's request.
4. By memorandum of 18 October 2022, which contained a detailed consideration of the appellant's circumstances, Ms. D.H. of the Removal Unit, Repatriation Division, Department of Justice, recommended that a removal order and an exclusion order be made in respect of the appellant. On 27 January 2023, Ms. E.H., Assistant Principal Officer acting on the respondent's behalf, agreed with the recommendation contained in the memorandum of 18 October 2022 and made the said orders.
5. The operative part of the Removal Order is as follows:
"NOW I, E. H., on behalf of the Minister for Justice, in exercise of the powers conferred by the said Regulation 20, hereby require you to leave the State within the period ending on the date specified in the notice served on or given to you under the said Regulation 21(4)."
6. The operative part of the Exclusion Order provides that:
"NOW I, E. H., on behalf of the Minister for Justice, in exercise of the powers conferred by the said Regulation 23, hereby impose an exclusion period on you whereby you shall not re-enter or seek to re-enter the State up to 3 years."
7. By letter dated 30 January 2023, made pursuant to Regs. 21(4)(b) and 23(6)(b) of the Regulations respectively, the respondent notified the appellant of the making of both Orders. That correspondence informed him that "...the time allowed to you to leave the territory of the State shall not be less than one month from the date of this notification, ..." and that the Exclusion Order had the effect of "... preventing you from entering the State for a period of 3 years from the date of your removal." The letter specified that the appellant was to present himself to the Garda National Immigration Bureau (hereafter 'GNIB') at 10.45 am on 1 March 2023 to make arrangements for his removal from the State. Copies of both Orders were enclosed with that letter.
8. By e-mail of 5 February 2023, the appellant sought a review of those decisions under Reg. 25 of the Regulations. Absent an application to suspend enforcement of the Orders, as Reg. 25(6) contemplates, that request had no suspensive effect. The Orders made on 27 January 2023 were, in consequence, never suspended by the operation of Reg. 26(7) of the Regulations.
9. By decision sent under cover of a letter dated 23 March 2023, Mr. B.E., Principal Officer, Repatriation Division, Department of Justice, acting on the respondent's behalf, affirmed the Removal and the Exclusion Orders made on 27 January 2023. That letter constituted a second notification for the purposes of Regs. 21(4)(b) and 23(6)(b). It was expressed in terms identical to the letter of 30 January 2023, save that the appellant was to present himself to the GNIB at 12 pm on 27 April 2023 to make arrangements for his removal from the State.
10. On 28 April 2023, the appellant applied to the High Court (Meenan J.) for leave to seek orders of certiorari to quash the Removal and the Exclusion Orders of 27 January 2023 and the decision of 24 March 2023 that affirmed them. The High Court (Meenan J.) granted leave on 26 June 2023. Nothing in the papers before this Court indicated that the appellant sought a stay on the application of either Order in the context of that application. The appellant's affidavit of 25 April 2023 grounding the application for judicial review exhibits copies of the Removal Order and the Exclusion Order, the e-mail by which he sought a review of those decisions, and a copy of the decision communicated by letter dated 23 March 2023 to inform him of the decision to affirm those Orders. That affidavit contains an application to extend the time within which to bring the present proceedings, but is silent as to what, if any, steps he took to comply with the obligation in the letter of 23 March 2023. Notwithstanding detailed averments in support of the submission that the appellant had intended to institute the proceedings within the requisite period of twenty-eight days, the supplemental affidavit of Mr. Dodd, the appellant's solicitor, made on 4 December 2023 in the context of the application to extend time, is silent as to whether the appellant attended at the offices of GNIB as he was required to. Similarly, Ms. Houlihan's affidavit verifying the Statement of Opposition of 3 November 2023 does not indicate whether the appellant presented himself to the GNIB. Although para. 43 of the written submissions filed on behalf of the appellant in this appeal represents that "The appellant has indeed presented to the Gardaí as instructed but was not removed and remains in the State", that representation is not evidence. The position is thus that the appellant has provided no proof of his compliance or otherwise with the Removal Order of which he had been notified. By Reg. 30(1)(k), failure to comply with a removal order is an offence, punishable summarily or on indictment (Reg. 30(4) of the Regulations).
11. The grounds on which the appellant obtained leave included, inter alia, a claim that since the Removal Order did not comply with the form prescribed by the Regulations, in that it failed to specify a period by which the appellant had to leave the State, it was ultra vires the respondent. The appellant advanced a similar plea as regards the validity of the Exclusion Order in that the latter did not specify a period during which the appellant was to be excluded from the State. The appellant also asserted that the notifications served together with those Orders did not identify the relevant time periods. Leave was also granted on other grounds.
12. On 29 May 2024, the High Court (Bradley J.) delivered a reserved judgment in which he refused to grant the various reliefs by way of judicial review in respect of which leave had been granted ([2024] IEHC 332). Rejecting the appellant's claims as to the invalidity of the Removal and the Exclusion Orders, at para. 51 of the judgment under appeal, he found the following facts:
"In the case before me, there is no basis, factually, for the applicant to contend in this application for judicial review that he did not understand the Removal or Exclusion Orders or that there is a lack of clarity. The documentation as a whole has to be considered and the Applicant here, in my view, received sufficient information to enable him to understand what is required from the perspective of his removal and exclusion and he does not complain in any affidavit before the court that he did not understand otherwise."
13. As a matter of law, the learned High Court judge held that the Regulations afforded the respondent a discretion as to the manner whereby effect is to be given to a Removal Order and that a number of alternatives were available to her for that purpose, including those she caused to have followed in the instant case. So far as the Exclusion Order was concerned, the judge considered that Order, read together with the accompanying notification, complied with the Regulations such that there was no basis upon which it could be quashed.
14. On 1 November 2024 ([2024] IEHC 750), the High Court ordered that the appellant pay the respondent's costs of the application and, pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, certified for determination two questions of law of exceptional public importance, namely:
"In assessing the lawfulness of a Removal and/or Exclusion Order, is it permissible to have regard to any notification (including a notification given under Regulation 21(4)(b) and/or Regulation 23(6)(b) of the 2015 Regulations) and/or any related correspondence and/or other written communication(s) supplied by the Minister to the addressee of that order, regarding the requirements for his removal and/or exclusion from the State?
When making a Removal and/or Exclusion Order, is it permissible for the Minister to identify a period within which the addressee must make arrangements to leave the jurisdiction, rather than providing a single date upon which the addressee's removal from the State must take place, or from which date the addressee's exclusion from the State must commence?"
III. Mootness of the challenge to the Removal Order
15. At the hearing of this appeal on 18 March 2025, Counsel informed the Court that, in the context of confirming his instructions, the appellant had advised Mr. Dodd that he had left the State some time in November 2024 and had taken up employment in Manchester, United Kingdom. Counsel further represented to the Court that the appellant has returned to the State every so often thereafter to meet his girlfriend and daughter and continues to express his wish to reside on its territory.
16. In the light of that development, Counsel for the respondent argued that the proceedings had become moot insofar as they challenged the validity of the Removal Order, although he accepted that change of circumstances had no bearing upon the challenge to the validity of the Exclusion Order, which continued to have legal effects for the appellant. Counsel for the respondent accepted that, following the Supreme Court judgment in Odum & Ors. v. Minister for Justice & Equality [2023] IESC 3, it was a matter for the Court to decide whether to entertain the appeal with respect to the validity of the Removal Order.
17. Counsel for the appellant rejected the submission that the challenge to the validity of the Removal Order had become moot. He argued that Order remained valid and constituted a marker of the cessation of his client's EU Treaty rights, the precise date of which he was entitled to be informed. He further submitted that since the notice that accompanied the Exclusion Order referred to time running from the date of the appellant's "removal", the validity of the Removal Order remained a live issue.
18. On the basis of the instructions relayed by Counsel, the Court's current state of knowledge is that the appellant has removed himself from the territory of the State since some time in November 2024. That raises the issue as to whether the challenge to the validity of the Removal Order is moot.
19. The operative part of the Removal Order is recited at para. 5, above. Its terms are plainly designed to achieve a single purpose: to ensure that the person to whom it is directed removes themselves from the territory of the State. The Removal Order is silent as to any other matter, including the appellant's future re-entry or return to the State.
20. As appears from para. 10, above, other than through his Counsel at the opening of his appeal, the appellant has provided no information to the Court as to any steps that he took to comply with the Removal Order or with the legal obligations that flowed therefrom. That dearth of information, for which he is entirely responsible, prevents this Court from entertaining any argument that he might have made as to the manner of the enforcement of the Removal Order. The reasons for the applicant's silence as to both his compliance with the Removal Order and why he removed himself from the State during the currency of these proceedings are unknown to this Court for the same reason, in circumstances where a failure to comply with that Order constitutes an offence. The appellant's silence also raises an issue as to whether his challenge to the validity of the Removal Order may be entertained in circumstances where it appears that the notice transmitted to the appellant under Reg. 21(4) of the Regulations, consisting of the letter of 23 March 2023 which states that he is required to present to the member in charge at GNIB at 12 p.m. on 27 April 2023 to facilitate his removal from the State, is spent. Although Reg. 22 of the Regulations provides that the appellant's failure to comply with the notification renders him liable to arrest and detention for the purposes of his removal from the State there is no evidence of such an arrest having been made. The appellant, in any event, now resides outside the State, notwithstanding that he occasionally re-enters its territory. The conclusion may be drawn from paras. 8 and 10, above, that at any time the appellant could be refused entry to the State on the basis of the Exclusion Order.
21. The appellant submits, through his Counsel, that his challenge to the validity of the Removal Order is not moot because he is entitled to know the date upon which he ought to have left the State. Since he no longer resides on its territory, any issue as to whether, had he chosen to remain in the State, the date upon which he was obliged to leave might have marked the cessation of his EU Treaty rights, is manifestly hypothetical.
22. In those circumstances, the question of the legality of the Removal Order appears to have lost its essential character as a real controversy as between the parties. The appellant's evidential silence as to his compliance with the Removal Order also deprives this Court of a concrete legal setting within which to resolve the issues he seeks to raise as to its validity. All of this has come about as a result of the appellant's unilateral behaviour. In the premises, the validity of the Removal Order is clearly moot.
23. As Counsel for the respondent correctly observed, there remains the question as to whether this Court should rule upon the legality of the Removal Order by reference to the principles the Supreme Court identified in its judgments in Odum and in Lofinmakin & Ors. v. Minister for Justice, Equality and Law Reform & Ors. [2013] IESC 49, [2013] 4 IR 274. At para. 42 of his judgment in Odum, O'Donnell C.J. (nem. diss.) observed that, in the exercise of a Court's discretion to rule upon proceedings that have become moot: "...it is necessary to underline the importance of looking at each case on its own facts and merits." Three factors appear relevant in the context of this appeal: the appellant's conduct, the certification of points of law by the High Court and the costs of the appeal.
24. The appellant's compliance with the Orders he seeks to challenge in these proceedings could be described as cavalier. From the papers before this Court, at no point in time does it appear that he made any request, let alone submitted an application, to stay the operation of either Order. It follows that, since 27 January 2023, the appellant has either been under an obligation to present himself at the GNIB at a specific time and date or, at least until an unknown date in November 2024, been at risk of arrest and detention for the purposes of being removed from the State. His apparent non-compliance with the Removal Order is an offence contrary to Reg. 30(1)(k). The Court has no details of whatever engagement he may have had with An Garda Siochána, a matter that is within his direct knowledge. He apparently informed his solicitor that he left the territory of the State sometime in November 2024 and that he continues to return there from time to time. Such evasive and unexplained conduct is so inconsistent with seeking relief by way of judicial review that it raises an issue as to whether it is in the public interest to entertain the question the High Court certified with respect to the validity of the Removal Order.
25. It may be said, and the appellant takes this point, that since the High Court exercised its jurisdiction under s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended, to certify two points of law of exceptional public importance in relation to which it is desirable in the public interest that an appeal be taken, this Court ought to rule upon them. The Supreme Court's decision in Odum explains why such certification is a relevant and an influential factor in the exercise of an appellate court's discretion as to whether to entertain a matter that has become moot. The weight to be given to certification in that calculus nonetheless ought not to be overstated. In Lofinmakin, the Supreme Court declined to hear an appeal on points of law that had obtained the benefit of certification pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000. A further consideration to be weighed in the balance is why the appellant chose not to inform the High Court, in the context of the application for a certificate to state points of law that it determined by way of judgment delivered on 1 November 2024, that he was contemplating leaving, if not already having made preparations to leave, the State in the course of that month. Had that information been given to the High Court, which it ought to have been, one might ask if it would have certified a question as to the validity of the Removal Order. It is nevertheless important to observe that, notwithstanding the appellant's seemingly relaxed approach towards compliance with the Orders that he seeks to challenge, the parties agree that the questions certified are not moot insofar as they address the validity of the Exclusion Order. The exercise the Court is asked to perform is thus more limited in scope than that which the Supreme Court carried out Lofinmakin and in Odum.
26. Since it is argued that the appeal is moot in part only, the question of the costs incurred therein, which was an important element in the Supreme Court's consideration of Odum, does not arise.
27. By reference to the facts and the merits of this case, I am of the view that this Court should decline to exercise its discretion to entertain that part of the appeal which seeks to impugn the validity of the Removal Order on the grounds that it does not come within the exceptional class of cases the Supreme Court judgments in Odum and Lofinmakin held may be decided notwithstanding their having become moot.
IV. Exclusion Orders
(a) Legal Background
28. At para. 46 of his celebrated Opinion in Case C-168/91 Konstantinidis v. Stadt Altensteig, EU:C:1992:504, Advocate General Jacobs observed that a Community national who went to another Member State as a worker or self-employed person was entitled not just to pursue a trade or profession and to enjoy the same living and working conditions as nationals of the host State, but to invoke the status of 'civis europeus sum' to oppose a violation of his/her fundamental rights. Thereafter Art. 20(1) TFEU established the concept of Union citizenship, whereby every person holding the nationality of a Member State is a Union citizen. Article 20(2)(a) TFEU provides that Union citizens shall enjoy the right to move and reside freely within the territory of the Member States. The first three recitals of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJEU L 158, p. 77, hereafter 'the Directive') reflect this in the terms following:
"Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.
The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.
Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. ..."
29. It is in only very limited circumstances that Member States may restrict the exercise of the right of free movement and residence on grounds of public policy, public security and public health. Recital 25 of the Directive provides that, in the event of Union citizens being denied leave to enter or to reside in another Member State, procedural safeguards should be specified in detail so as to ensure a high level of protection of those rights. By recital 27 of the Directive, Union citizens who have been excluded from the territory of a Member State may submit a fresh application after a reasonable period and, in any event, upon the expiry of three years from the enforcement of a final exclusion order.
30. Article 27(1) of the Directive makes restrictions on the freedom of movement and residence of Union citizens on grounds of public policy subject to the provisions of Chapter VI thereof. Article 30(1) of the Directive states that persons concerned shall be notified in writing of any decision taken under Art. 27(1) in such a way that they can comprehend its content and its implications. Such persons are to be informed, precisely and in full, of the grounds for that decision, unless disclosure is contrary to State security (Art. 30(2)). Article 30(3) of the Directive provides that notifications shall specify the court or the administrative authority with which the person concerned may lodge an appeal, the time limit to lodge that appeal and, where applicable, the time allowed for a person to leave the territory of a Member State. Article 30 of the Directive is silent as to the time when such a decision takes effect. Article 32(1) of the Directive, entitled "Duration of exclusion orders", provides that persons excluded on grounds of public policy may apply to lift an exclusion order after a reasonable period, and in any event three years after the enforcement of a final exclusion order validly adopted in accordance with Union law. The operation of that provision requires, at a minimum, certainty as to the date of the enforcement of a final exclusion order.
31. The Regulations were made for the purpose of giving effect to the Directive. Regulation 23(1) thereof provides that the respondent may make an exclusion order in respect of a person where in his/her opinion that person represents a danger for public policy or public security by reason of the fact that his or her personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. By Reg. 23(2), an exclusion order shall require the person in respect of whom it is made not to enter the State for the period specified therein. Regulation 23(6)(b) provides that where the respondent decides to make an exclusion order, he or she shall, in writing and in a language that the person to whom it is addressed may reasonably be expected to understand, notify the person concerned of that fact. By Reg. 23(7), that notification shall be accompanied by the exclusion order with which the addressee must comply. Under Reg. 23(8), a person to whom an exclusion order is directed may apply to have that order revoked, or the exclusion period reduced, which application may be made, inter alia, three years after the date of its enforcement. Regulation 23(13) provides that an exclusion order shall be in the form set out in Schedule 12 to the Regulations and shall be accompanied by such information as is necessary to inform the person concerned of the administrative and judicial authorities with whom s/he may lodge an application for a review. The Exclusion Order appears to have been made in the prescribed form. By Reg. 30(1)(j) a person who fails to comply with an exclusion order commits an offence.
(b) Discussion
32. It follows from what is set out at Pt. IV(a), above, that exclusion orders are an exception to the exercise of the primary and individual right of every Union citizen to move and reside freely within the territory of the Member States. Such orders must thus comply with fundamental rights. The procedural requirements that constrain Member States when they make such orders are strict and are designed so as to ensure that persons affected are in a position as to assert their rights to have those orders revoked or consideration given to their duration being reduced. Notwithstanding the absence of a provision requiring the duration of an exclusion order to appear on its face, in order to exercise the rights conferred by Art. 32(1) of the Directive, as given effect to by Reg. 23(8) of the Regulations, and thus to ensure their effet utile, the duration of an exclusion order must be capable of being ascertained with precision by the person to whom it is addressed. That requirement is also consonant with the right to good administration recognised by Art. 41 of the Charter of Fundamental Rights of the European Union, which the respondent is bound to observe when, as here, s/he implements the provisions of a directive: see, inter alia, judgment of the Court of Justice in Case C-412/21 Dual Prod SRL, EU:C:2023:234, para. 26. The right to good administration, which is a general principle of EU law, includes the principle of legal certainty, which requires, inter alia, that rules of law are clear and precise and predictable in their effect, especially where they have negative consequences for individuals: see, inter alia, judgments of the Court of Justice in Case C-143/93 Van Es Douane Agenten BV, EU:C:1996:45, paras. 27 to 33 and in Case C-98/14 Berlington Hungary Tanácsadó és Szolgáltató kft, EU:C:2015:386, para. 77.
33. The nub of the appellant's argument on the validity of the Exclusion Order appears to be that it was not made in the form specified in Reg. 23(13) of the Regulations, by reason of which it is invalid; that it did not specify an exclusion period for the purposes of Reg. 23(2) thereof; and that insofar as it did, that period is expressed as "up to 3 years", which is impermissibly vague. The respondent's answer is that the notification of the Exclusion Order pursuant to Reg. 23(6)(b) of the Regulations, which stated that it prevented the appellant "... from entering the State for a period of 3 years from the date of your removal" specified a period for the purposes of Reg. 23(2) thereof. That statement gave rise to no uncertainty when read together with the notifications of the Removal Order and of the Exclusion Order, which provide that the exclusion period is of up to three years, to run from the date of the appellant's removal. Any perceived frailty in compliance with the form in Schedule 12 of the Regulations (which is not admitted) was insubstantial, notably since the notification under Reg. 23(6)(b) thereof had conveyed the relevant information.
34. The first question the High Court (Bradley J.) certified, as formulated in the light of the conclusion reached at Part III, above, asks if, in assessing the lawfulness of an exclusion order, it is permissible to have regard to any notification, including one given under Regs. 21(4)(b) and/or 23(6)(b) of the Regulations, and/or any related correspondence and/or other written communication(s) the respondent supplied to the addressee of that order, regarding the requirements for his/her removal and/or exclusion from the State?
35. So far as appears relevant here, Art. 30 of the Directive prescribes that the notification of decisions taken under Chapter VI thereof must be in writing, that addressees can comprehend their content and their implications and, where applicable, specify the time allowed for the person concerned to leave a Member State's territory. The Directive prescribes no form by reference to which Chapter VI decisions are required to be made, recorded or notified. The correct operation of the notification system that the Regulations establish appears, in principle, to be capable of satisfying those requirements. Save where it can be objectively considered to cause confusion in the addressee's mind, which is not submitted is the case here, there appears to be no reason why, in considering the lawfulness of an exclusion order, regard cannot be had to any notification and/or any related correspondence and/or other written communication(s) the respondent supplied to the addressee of that order as regards the requirements for his/her removal and/or exclusion from the State. The first question the High Court certified for appeal should thus receive an affirmative answer.
36. The second question the High Court certified may now be read as asking is it permissible for the respondent, when making an exclusion order, to identify a period within which the addressee must make arrangements to leave the jurisdiction, rather than providing a single date from which that person's exclusion from the State must commence?
37. By Reg. 23(2) of the Regulations, an exclusion order shall require the person in respect of whom it is made, for the period specified therein, not to enter the State. On the face of it, Reg. 23(2) is capable of providing a complete answer to the question certified. Nonetheless, when read in the context of the Regulations, the Directive that it seeks to implement and the parties' submissions, the second question in fact seems to ask whether an exclusion order ought to contain sufficiently precise terms so as to enable the addressee to know when he or she may re-enter the State without committing an offence under Reg. 30(1)(j) of the Regulations, or when he or she may request the respondent to review that order in the exercise of his/her powers under Reg. 23(8)(b) thereof.
38. As observed at para. 31, above, the Exclusion Order appears to have issued in compliance with the form specified in Schedule 12 of the Regulations, to which Reg. 23(13) refers. The point advanced on the appellant's behalf that it does not is thus without substance, such that the Court need not consider the respondent's riposte that any non-compliance with the scheduled form of the Exclusion Order has no consequences for its validity.
39. The argument that the Exclusion Order does not specify an exclusion period for the purposes of Reg. 23(2) of the Regulations and/or that the period is stated in impermissibly vague terms is of greater substance. The operative part of that Order states "...in exercise of the powers conferred by the said Regulation 23, hereby impose an exclusion period on you whereby you shall not re-enter or seek to re-enter the State up to 3 years." When read in that context, the words "up to 3 years" appear to be capable of bearing a number of meanings. They may be interpreted as "not less than 3 years" or "not before the end of 3 years". They can also be read as a reference to a period of less than ("up to") 3 years. The words "up to 3 years" to describe the duration of an exclusion period in this context thus appear inherently uncertain. That frailty does not meet the requirements to specify an exclusion period in Reg. 23(2) of the Regulations so as to allow a person affected to seek a review of the order after three years, as Reg. 23(8) thereof provides, and to communicate the decision in a manner that the addressee is capable of understanding, as Reg. 23(6) requires. The shortcoming that I have identified as afflicting the Exclusion Order thus appears to be a consequence of the form of words used in Schedule 12 of the Regulations. The replacement of those words by another formula appears capable of meeting the requirements of the Regulations and of the Directive, as interpreted in the light of the general principles of EU law described at para. 28, above.
40. On the facts of this case, the deficiency I have identified in the Exclusion Order is not resolved by reference to the content of the notifications served on the appellant. The Exclusion Order was affirmed as a consequence of the review, by reason of which it has been in full force and effect since 27 January 2023. Since its execution has never been suspended, is time calculated to run from that date? Or does time run from 23 March 2023, the date upon which a decision was taken after review of the file? As for the reference across to time running from the date of the appellant's removal from the territory of the State, it seems that until he removed himself from the State on an unidentified date in November 2024, the appellant remained in the State, notwithstanding that by so doing he may have committed a number of offences. Can the appellant, by a unilateral act on a date of which neither the respondent nor the Courts hearing the within proceedings are aware, be deemed to "enforce" the Exclusion Order so that the time period of "up to 3 years" began to run from then? In the absence of an act by the Executive or some form of acknowledgement by the appellant, is it the case that the Exclusion Order has never been "enforced" such that the exclusion period decreed on 27 January 2023 has not yet commenced to run? The documentation furnished to the appellant does not appear to allow for the precise date upon which he can lawfully re-enter the State or from which he could seek to have the duration of the exclusion period reviewed to be ascertained readily. Allowing for the fact that the appellant may be said to be, at least in part, the author of his own misfortune, that state of affairs appears to be contrary to the principle of legal certainty in an area where EU law provides that the default position is that all Union citizens enjoy a primary and individual right to travel to and reside in the territory of the State.
41. It is for these reasons that I do not propose to follow the reasons that the learned High Court judge set forth at paras. 62 to 71 of his judgment of 29 May 2024 to support his conclusion that there was no basis upon which to quash the Exclusion Order.
42. I therefore propose that this Court answer the second question the High Court certified that, when notifying the making of an exclusion order, the respondent must identify a period that the addressee of that decision can establish with certainty so as to enable him or her to know the date upon which s/he is entitled to re-enter the territory of the State and/or make an application for a review of that order by reference to Reg. 23(8) of the Regulations. In the circumstances of this case, I find that the Exclusion Order is invalid by reason of uncertainty as to the time at which it takes effect, which flaw was not remedied by the notifications that were served upon the appellant. There is accordingly no necessity for the Court to adjudicate upon the other grounds the appellant caused to have advanced in support of his claim as to its invalidity.
V. Orders
43. By reason of the foregoing, I propose that this Court allows the appeal in part, set aside that part of the Order of the High Court of 19 September 2024 insofar as it refused to make an order of certiorari to quash the Exclusion Order addressed to the appellant dated 27 January 2023, make an order of certiorari by way of judicial review to quash the said Exclusion Order and dismiss the balance of the application for judicial review.
44. The default position under s. 169(1) of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. Notwithstanding that the appellant has partially succeeded in these proceedings by obtaining an order to quash one of the two orders he sought to impugn, I adopt a provisional view that he is entitled to an order against the respondent for the costs of the proceedings in this Court and in the High Court, to be adjudicated upon in default of agreement. Should the respondent disagree with that proposed order, he should cause to have filed and served a written submission of not more than 2,000 words within 14 days of the delivery of this judgment, after which the appellant will have a further 14 days in which to respond by the lodgment and service of a reply of no greater length.
45. Since this judgment is delivered electronically, I am authorised by Binchy and Hyland JJ. to state that they agree with it and with the orders proposed therein.
Result: Appeal allowed in part.
Appearances:
For the Applicant/Appellant: Conor Power SC and Ian Whelan, instructed by Monahan Solicitors
For the Respondent: Eoin Carolan SC and Mark William Murphy, instructed by the Chief State Solicitor