Jin Liang Li v Governor of Cloverhill Prison

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Li
Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:[2012] IEHC 493
Nature of Proceedings:Application pursuant to Article 40.4 of the Constitution
Judgment Date/s:28 Nov 2012
Category:Detention, Refugee Law
Keywords:Asylum, Asylum (Application for), Detainee, Detention, Detention Facility, Enforcement Measure, Illegal Stay, Migrant (Illegally resident / staying), Non-national, Overstay(er), Refugee, Removal, Repatriation, Return (Forced), Third-Country national found to be illegally present
Country of Origin:China
URL:https://www.courts.ie/acc/alfresco/a7c7aa7f-d1f0-445a-a68d-2aa94dc25131/2012_IEHC_493_1.pdf/pdf#view=fitH

Facts

The applicant was a Chinese national who was living in the State for approximately 13 years, having overstayed his visa entitlements and had been working illegally. The applicant refused to cooperate in obtaining travel documents for him and it later transpired that he had another valid passport unknown to the Irish authorities. He was arrested and as arrangements were being made to take him to the airport and leave the applicant claimed asylum. He was arrested and detained pursuant to Section 9(8)(a) of the Refugee Act 1996 . He was brought before the District Court which made an order detaining him on the ground he posed a threat to public order.

Reasoning

The High Court held that the power to arrest an asylum applicant under Section  9(8)(a) and detain him or her for up to 21 days is a form of preventive civil detention. Given the constitutional guarantee in Article 40.4.1 the objective necessity for such detention must be compellingly established. The constitutional considerations must inform, and by necessity, delimit these powers to arrest and detain a person. The words ‘public order’ are juxtaposed beside ‘national security’ and this meant that the phrase ‘public order’ must be given its narrower and more restricted meaning. In that context the reference to public order referred to the threat posed to fundamental state interests by the likely conduct or even, in particularly unusual cases, the very presence of the applicant for asylum in the State.

Decision

The applicant’s conduct in flouting the immigration regime, by, for example, not cooperating and working illegally was to be deplored but his conduct did not threaten fundamental state interests and there were no compelling State interests which would justify his detention on a preventive basis. The applicant’s conduct did not and could not in itself threaten public order in the narrow sense that the Court held the words in Section 9(8)(a) to mean. The Court found, that it followed that his arrest and detention on the basis of public orders was unlawful.

Principles:

The power to arrest an asylum applicant under section  9(8)(a) of the Refugee Act and detain him or her for up to 21 days is a form of preventive civil detention.

Given the constitutional guarantee in Article 40.4.1 the objective necessity for such detention must be compellingly established. The constitutional considerations must inform, and by necessity, delimit these powers to arrest and detain a person. The words ‘public order’ are juxtaposed beside ‘national security’ and this meant that the phrase ‘public order’ must be given its narrower and more restricted meaning. In that context the reference to public order referred to the threat posed to fundamental state interests by the likely conduct or even, in particularly unusual cases, the very presence of the applicant for asylum in the State.

Conduct which flouted the immigration regime, such as not cooperating or working illegally, was not conduct which threatened fundamental state interests.

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