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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Raducan & Anor -v- MJELR & Ors [2011] IEHC 224 (03 June 2011) URL: https://www.bailii.org/ie/cases/IEHC/2011/H224.html Cite as: [2012] 1 ILRM 419, [2011] IEHC 224 |
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Judgment Title: Raducan & Anor -v- MJELR & Ors Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 224 THE HIGH COURT 2010 1398 JR BETWEEN/ RADU RADUCAN AND AURELIA RADUCAN APPLICANTS AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on the 3rd June, 2011 1. The applicants are a couple who were married on 20th March, 2007, in Purcari, Moldova. Ms. Raducan is Moldovan and Mr. Raducan is Romanian. They originally travelled to Ireland in April, 2007. At that time, Ms. Raducan, who holds a Moldovan passport, stood possessed of an Irish visa. It is common case that Ms. Raducan overstayed her visa at that time, but nothing greatly turns on this, since it is also accepted that, as the spouse of an EU citizen, she a perfect entitlement in principle to enter this State. 2. The couple left Ireland in July, 2010 and returned to Romania. It would appear that when they were there they went to some trouble to ensure that their married status - and, hence, Ms. Raducan’s entitlement to accompany her spouse - would be vouchsafed. To that end, the applicants obtained a formal marriage certificate which was issued by the Romanian Embassy in Chisnau, Moldova on 1st October, 2009. The certificate was in three languages, Romanian, French and English. A Hague Convention apostille - which is effectively the equivalent in international law of the notarisation of a document for domestic law purposes - was issued in respect of that marriage certificate in April, 2010. 3. In addition to the marriage certificate (and the apostille attached to it), the applicants were also in possession of a plastic identity 4. The applicants arrived at Dublin airport on Friday, 29th October, 2010, on a a flight from Bucharest with a one-way ticket. While there is a conflict of fact as to what exactly happened following the presentation of their passports to the immigration authorities, there are other key facts which are not in dispute. It is agreed that Moldova is not visa exempt and that Ms. Raducan did not have an Irish visa which she was otherwise required to possess. It is equally agreed, however, that Ms. Raducan would have been entitled to admission into the State as of right on presentation of the family
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![]() ![]() The evidence 8. It is not in dispute but that shortly afterwards Ms. Raducan was arrested by Garda McCormack pursuant to s. 5(2) of the Immigration Act 2003, and brought to the Dóchas Centre where she was to be detained pending her removal from the State to Bucharest on Tuesday, 2nd November, 2010. Mr. Raducan was permitted to enter the State. As it happens, an application was made to this Court on Saturday 30th October for an inquiry into the legality of Ms. Raducan’s detention pursuant to Article 40.4.2 of the Constitution. Kelly J. directed such an inquiry and the applicant was released on Monday, 2nd November, 2010. 9. Returning now to the oral evidence, Garda McCormack agreed that there were communications difficulties with the applicants. When she asked Ms. Raducan why she did not have an Irish visa, the latter claimed that she was married. Garda McCormack said that she then asked Ms. Raducan to produce her marriage certificate, but it was never produced. She also noted that the couple had only one way tickets, that Ms. Raducan had previously overstayed her visa and that vague and contradictory explanation were given in respect of the anticipated length of their stay. Garda McCormack was emphatic that neither the marriage certificate nor the family 10. Under cross-examination Garda McCormack agreed that she had not asked Ms. Raducan whether she was married, but stressed that no marriage certificate or family 11. Garda McCormack’s immediate supervisor, Sergeant Biggins, also gave evidence. He said that he had only seen the passports and that no other documents had been produced. He had not seen any marriage certificate which he maintained was the standard document to be produced in such cases. He had not seen any family 12. Under cross-examination Sergeant Biggins emphasised that following Ms. Raducan’s detention it was up to the applicant’s legal advisers to produce the necessary documentation and that it was not for him to be proactive in this matter. He again emphasised that he had not seen the marriage certificate or the 13. The applicants then called Mr. Gavin Cheevers, a legal executive in the applicant’s solicitor’s law firm, James M. Sweeney & Co.. He confirmed that he had been contacted late on the Friday evening by a friend of Mr. Raducan who had endeavoured to summarise what had happened to Ms. Raducan earlier that afternoon. Mr. Cheevers managed to arrange a visit to the Dóchas Centre on the Saturday morning where he obtained a copy of the marriage certificate from the prison officials. He then explained the steps which led to the Article 40 application being put in train. 14. At the conclusion of Mr. Cheevers’ evidence, the respondents agreed to make further inquiries. On the second day of the hearing, a copy of an entry from the prison reception book for the Dóchas Centre was produced by the respondents. This document plainly showed that Ms. Raducan was in possession of the family 15. Faced with this conflict of fact, it falls to me to resolve the question of whether these documents were produced. It is only fair and proper to record that I am absolutely satisfied that both Garda McCormack and Sergeant Biggins are conscientious and dedicated immigration officers who perform a difficult job under demanding circumstances. There is also no question but that both gave absolutely honest evidence regarding their recollection of events. Their bona fides and sincerity are absolutely not in doubt. 16. Nevertheless, in approaching this question, one may again stress that Ms. Raducan had an unquestioned right under both national and EU law to enter the State if either of these documents had been produced. It is in that vein that we may thus heed the advice of fiction’s greatest analyst of factual conflict, namely, that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”: see Conan Doyle, The Sign of Four (1890)(Penguin Books, 1982)(at 51). 17. To my mind, it is impossible to believe that Ms. Raducan would not have endeavoured to produce either or both documents at some stage during the course of the immigration process. It must be recalled that the Raducans had evidently gone to some trouble to obtain these documents in the course of their trip to Romania. They also clearly appreciated the significance for Ms. Raducan of both the family 18. It follows, therefore, that the alternative explanation – however otherwise improbable in itself – must be the truth. But quite independently of Holmes’ aphorism, there are several factors which also tend to support the conclusion that Ms. Raducan did, in fact, produce one or other of these documents. Neither Garda McCormack nor Sergeant Biggins had ever previously seen a family 19. It must also be further recalled that Garda McCormack’s suspicions were not unnaturally been aroused by reason of the fact that Ms. Raducan had no visa; that the couple had given somewhat contradictory accounts of the length of their proposed trip; that they had only a one way ticket from Bucharest and that the Garda immigration records showed that Ms. Raducan had previously overstayed in 2007. Perhaps in these circumstances Garda McCormack was – understandably enough –inclined to doubt Ms. Raducan’s bona fides. To this must be added factors such as confusion and uncertainty arising from a mutual misunderstanding, along with the absence of an interpreter. 20. In these circumstances, I am coerced to the conclusion that Ms. Raducan must have produced (or, at least, endeavoured to produce) one or other document such as would have entitled her to enter the State and that in the general confusion arising from a mutual misunderstanding neither Garda McCormack nor Sergeant Biggins fully appreciated this fact. Compliance by the State with Article 5(2) and Article 5(4) of the 2004 Directive
In view of the importance which the Community legislature has attached to the protection of family life……, it is in any event disproportionate and, therefore, prohibited to send back a third country national married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.” (Emphasis supplied)
![]() ![]() Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.” (emphasis supplied) 24. Nor can it be said in the present case that the State has complied with its duty with regard to Article 5(4) which was, before turning the applicant back, to give her “every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and 25. Nor was the obligation to provide Ms. Raducan every reasonable possibility of regularising her position complied with in the present case. No interpreter was made available and nor was contact made with the Romanian Embassy with regard to the identity Conclusions regarding the detention 27. While I am convinced that no personal blame should attach to either Garda McCormack and Sergeant Biggins - both of whom, it is plain, are conscientious and highly dedicated immigration officers – the same, unfortunately, cannot be said of the State and its policy with regard to the admission of the spouses of EU nationals who are third country citizens. It all too obvious that there have been significant and very serious breaches of EU law which, on the evidence, may well be continuing: the failure, for example, to have a visa processing service for such applicants, either at Dublin Airport or elsewhere within the State is openly at variance with the express language of Article 5(2) of the 2004 Directive. Nor have appropriate steps been taken to inform immigration personnel of the nature and importance of family 28. In these circumstances, I propose to grant declarations to the effect that:
- By refusing to admit Ms. Raducan, and, in particular, by failing to offer her a visa processing facility within the State, the State failed in its obligations to comply with Article 5(2) and Article 5(4) of the 2004 Directive. 30. It is only appropriate that I should also record that Ms. Raducan informed the court through her counsel that she had been well treated while in prison. While her generosity of spirit and general lack of rancour with regard to her experience are most commendable, I cannot overlook the fact that what occurred represented a very serious breach of her constitutional right to liberty (Article 40.4.1) and, indeed, her constitutional right to a good name (Article 40.3.2). This, furthermore, was also a direct consequence of the State’s failure to comply with its obligations under Article 5(2) and Article 5(4) of the 2004 Directive. 31. It is against this background that there is a clear obligation imposed by Article 40.3.1 of the Constitution on this Court, as the judicial arm of government, to vindicate her constitutional rights. In these circumstances, I propose to award Ms. Raducan damages equivalent to €2,500 for each full day in custody. Since she was unlawfully detained for the equivalent of almost three full days, I will therefore award Ms. Raducan the sum of €7,500 in damages for breaches of her constitutional rights.
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