This case involved an appeal to the Supreme Court in respect of an application brought under Article 40.4.2 of the Constitution of Ireland. The High Court had found that the Applicant’s detention was in accordance with law. The Applicant appealed this to the Supreme Court.
On the evening of 1 August 2011, Gardai stopped a bus which had crossed the border from Northern Ireland. The Appellant could not provide the Garda with any form of identification and the Appellant accompanied the Garda to a Garda station. The Appellant filled out a landing card stating he was from Sierra Leone. The Gardai did not accept that the Appellant was from Sierra Leone, and asked him to fill out another landing card, which the Appellant did, this time stating his nationality to be Nigerian. The Appellant’s solicitor averred that the Appellant instructed him that he was already an asylum seeker in the State, and that he felt pressurised into completing a second landing card containing a reference to Nigeria and stating his nationality to be Nigerian.
The Appellant was refused permission to enter the State, and detained pending his removal under s. 5 of the Immigration Act 2003, as amended. The Gardai gave the Appellant three documents:
- one referring to the fact that he did not have a valid passport or equivalent document;
- one stating he did not have a valid Irish visa; and
- one stating that the Appellant intended to travel to Great Britain or Northern Ireland, where he would not qualify for admission.
The detention order at issue stated:
“In exercise of the powers conferred on me by Section 5(2) of the Immigration Act, 2003, I direct that pending the making of arrangements for his/her removal from the State, that:
“Gerard Ejerenwa, DOB 28/10/1978
“Be detained in Cloverhill Prison, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003 in the custody of the Garda Siochana for the time being in charge of that place.”
Section 5 of the 2003 Act provides, inter alia:
5. (1) Subject to section 5 of the Refugee Act 1996 and section 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000, this section applies to—
(a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (SR&O 1946 No. 395) (‘‘the Order’’),
(b) a non-national who has failed to comply with Article 5(1) of the Order,
(c) a non-national who has entered the State in contravention of Article 6 of the Order,
(d) a non-national deemed to be a person to whom leave to land has been refused under the Order, whom an immigration officer or a member of the Garda Siochana, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than 3 months.
5. (2) (a) Subject to paragraph (b), a person to whom this section applies may be arrested by an immigration officer or a member of the Garda Siochana and detained under warrant of that officer or member in a prescribed place and in the custody of the officer of the Minister or member of the Garda Siochana for the time being in charge of that place.
…
The Appellant appealed, inter alia, on two grounds: (1) that the detention order was defective on its face, and (2) that it was necessary for the order to show on its face the time permitted for detention (i.e., eight weeks).
Re (1), whether the order was defective on its face, the Court stated that the principle of law, i.e., that the immigration officer or Garda acting under the immigration legislation must show on the face of a document which he or she creates, the facts upon which jurisdiction rests for warrants such as that in issue, was well established, and, indeed, ancient (The State (Hughes) v Lennon & Ors [1935 IR 128; Gosset v Howard (1845) 10 QB 411; Simple Imports Ltd. v Revenue Commissioners [2000] 2 IR 243 followed). The Court held that a document, such as that in issue here, should contain clear information on its face as to the basis of its jurisdiction.
The Court found that in this case the detention order referred only to s. 5(2)(a) of the Immigration Act 2003, and that this was insufficient to show jurisdiction because it did not state on its face the reason for the arrest and detention. The Court stated that s. 5(2) confers a power of arrest and detention of “a person to whom this section applies”, and that it was therefore necessary to see what provisions of s. 5(1) applied. The Court noted that the Detective Garda appeared to rely on three of them, as per the three documents furnished to the Appellant, but found that the defect in the detention order was the failure to state that the Appellant had been refused permission to land and, as required by s. 5(1) of the Immigration Act 2003, that the Garda had “with reasonable cause” suspected that the Appellant had been “unlawfully in the State for a continuous period of less than three months.” Accordingly, as these facts were not on the document, the Court released the Appellant.
Re (2), whether it was necessary for a detention order to show on its face the time permitted for detention, which, in the context of s. 5 of the Immigration Act 2003 as amended is eight weeks, the Court held that the permitted period of detention is a matter of general law, provided by statute, and a warrant of detention is not required to make statements of law.
