Om v Governor of Cloverhill Prison


Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:1st August 2011, 2011 IEHC 341, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:01 Aug 2011
Judge:Hogan, G.
Category:Deportation, Detention
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Order, Nationality, Non-EU National, Non-national, Refoulement, Refoulement (Non-), Removal, Removal Order, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Contested
Geographic Focus:Ireland

This case involved an application brought under Article 40.4.2 of the Constitution of Ireland. The Applicant, David Fracis Om, who had unsuccessfully sought asylum, claimed to be Liberian, but his precise origins were a matter of doubt throughout the asylum process. The Refugee Applications Commissioner had found that he showed a distinct lack of knowledge of Liberian history and geography, and, on appeal, the Refugee Appeals Tribunal, took a similar view. The Applicant subsequently applied for subsidiary protection, and this was rejected and the Minister for Justice ultimately made a deportation order in respect of the client. All of these decisions nevertheless proceeded on the assumption that the Applicant was Liberian.

An official from the Liberian Embassy in London travelled to the Garda National Immigration Bureau (GNIB) in Dublin, interviewed the Applicant, and concluded, based on what was said to be basic errors in relation to history, geography and language, that the Applicant was not Liberian. A Detective Garda then put it to the Applicant that he was not Liberian. The Applicant insisted that he was. The Garda informed the Applicant that the GNIB believed he was frustrating their attempts to progress deportation and as no new information was forthcoming from the Applicant, the Garda arrested him under s. 5(1)(d) of the Immigration Act 1999.

Section 5(1)(d) of the Immigration Act 1999 provides:

“Where an immigration officer or a member of the Garda Siochana, with reasonable cause suspects that a person against whom a deportation order is in force –

(d) intends to avoid removal from the State,

he or she may arrest him without warrant and detain him or her in a prescribed place.”

Section 3(1A) of the Immigration Act 1999 provides:

“A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State.”

Under section 5(6)(a) of the 1999 Act, a person cannot be detained under the Act for a period or periods in exceeding eight weeks in aggregate.

Two questions arose:

  1. whether the arrest was lawful; and
  2. if it was, whether the continued detention was lawful.

Re 1., the arrest, the Court stated that the question of whether the relevant suspicion was justified was an objective one (Walshe v Fennessey [2005] IESC 51, [2005] 3 IR 51 followed). The Court found that the Gardai were entitled to act on the basis of the information supplied by the Liberian diplomat once the Applicant was given an opportunity to respond to this development.  The Court held that the arrest was lawful.  The Court noted, obiter, that perhaps no fair inference could have been drawn from other questions asked, e.g., re whether the Applicant could name former Liberian presidents, and noted the difficulty of attempting to prove or disprove identity regarding country specific geography, history or politics.

Re 2., the continued detention, the Court stated that the constitutionality of s. 3(1A) of the 1999 Act had been upheld by the Supreme Court on the basis of the existence of certain safeguards (Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; Gutrani v Governor of Wheatfield Prison, Unreported, 19th February 1993 applied), and that detention under s. 5 must be for the purposes of effecting a deportation order, and it must be evident that the deportation can actually be effected within the eight week statutory period (BFO v Governor of Dochas Centre [2005] 2 IR 1 cited with approval).

The Court said that the real question was whether there was any likelihood that the deportation could actually be effected within the remaining six weeks or so of the detention period. The Court found that this was unlikely because:

  • investigation of the Applicant’s true nationality would take time;
  • if it were established that the Applicant was a national of another country, it would be necessary for the Minister to consider the issue of refoulement afresh; and
  • there would be issues arising re organising a deportation flight.  The Court held that since it did not seem likely that there was any real prospect that the Applicant could be deported within the maximum detention period, his continued detention was unlawful.
  1. The question of whether a suspicion that a person intends to evade deportation, so as to allow for that person’s detention, is justified under s. 5(1) (d) of the Immigration Act 1999 is an objective one.
  2. Detention of a person (against whom a deportation order has been made) under s. 5 of the Illegal Immigrations Act 1999 must be for the purposes of effecting a deportation order, and it must be evident that the deportation can actually be effected within the eight week statutory period.
  3. Matters relevant to whether there is any likelihood that deportation can be effected within the maximum detention period are:
    whether there is an investigation of an Applicant’s nationality;
      whether it would be necessary for the Minister to consider the issue of refoulement afresh; and
        practicalities re organising deportation.
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