Facts
The applicant was an Algerian national and was the subject of a deportation order but he evaded the implementation of the order. He was arrested and detained on the basis of Section 5 of the Immigration Act 1999 including that he: failed to comply with a provision of the deportation order; failed to comply with a requirement in a notice sent to him under Section 3(3)(b)(ii); and that he intended to avoid removal from the State. Garda authorities conducted discussions with the Algerian Consulate in London and arrangements were put in place and travel documents issued for his repatriation to Algeria. While he was being transported to the airport he became physically violent and acted in the most extreme manner to resist the efforts of the Garda to remove him. The Garda concluded that it would not be possible to deport him. He was arrested at the airport and brought back to prison. A new notice of detention was completed. The same basis under section 5 for the detention was used as had been used on the previous occasion. The applicant remained in custody.
The applicant argued that the total period of his detention, when counted from 8 February 2012 to 13 April 2012, exceeded the aggregate period of 8 weeks permitted by Section 5(6)(a) of the Immigration Act 1999, and therefore his detention was unlawful.
Reasoning
Fennelly J. held that the 8-week period commencing on 8 February 2012 had not expired on 29 March when the applicant was taken from Cloverhill prison to be deported, 50 days later. However, he was brought back to Wheatfield prison and detained there, and there was no break in the detention and therefore the period of detention had exceeded the 8-week aggregate period. Fennelly J. said that not only did the provision prohibit detention for any single period of more than 8 weeks but it also prohibited multiple detentions of periods of less than 8 weeks, where the total period exceeded 8 weeks. Fennelly J. held that the Court could not adopt a flexible or purposive interpretation of a provision designed to protect personal liberty, particularly where such an interpretation would not be in accordance with the clear language of the Oireachtas.
Clarke J. held that there were sound policy reasons for imposing a time limit on a form of detention that might, if it could be open-ended, be considered unjust, and possibly unconstitutional. The reason for imposing a time limit on the aggregate amount of detention was to prevent the use of multiple periods to get round the eight week limit.
MacMenamin J., in agreement with Fennelly and Clarke JJ., noted that the effect of Section 5(6)(a) was that the applicant benefited from his own wrongdoing and his own violent misconduct prevented his orderly deportation from the State. He held that there were, however, fundamental issues of the right to liberty at stake and the applicant was entitled to rely on a literal interpretation of the provisions. MacMenamin J. also pointed out that the matter was for the legislature to remedy, and clearly, where a deportation can be defeated by unlawful actions by an individual about to be deported, this required legislative intervention.
Decision
The 8-week period commencing on 8 February 2012 had not expired on 29 March when the applicant was taken from Cloverhill prison to be deported, 50 days later. However, having been brought back to Wheatfield prison and detained there, there was no break in the applicant’s detention and therefore the period of detention had exceeded the 8-week aggregate period and was unlawful. Not only did the provision prohibit detention for any single period of more than 8 weeks but it also prohibited multiple detentions of periods of less than 8 weeks, where the total period exceeded 8 weeks. The Court could not adopt a flexible or purposive interpretation of a provision designed to protect personal liberty, particularly where such an interpretation would not be in accordance with the clear language of the Oireachtas.
