Omar v Governor of Cloverhill Prison and the Garda National Immigration Bureau

Respondent/Defendant:Governor of Cloverhill Prison and the Garda National Immigration Bureau
Court/s:High Court
Citation/s:[2014] IEHC 215
Nature of Proceedings:Judicial Review
Judgment Date/s:11 Apr 2014
Judge:MacEochaidh J.
Category:Deportation, Detention
Keywords:Deportation, Deportation Order, Detainee, Detention
Country of Origin:Tanzania
Geographic Focus:Ireland

The applicant sought an inquiry pursuant to Article 40.4 of the Constitution into the legality of her detention following her arrest under s. 5 of the Immigration Act 1999 for evading deportation.

She claimed that her detention was unlawful because the arresting Garda had unlawfully entered her apartment and placed her under de facto arrest and detention, before bringing her by Garda vehicle to a Garda station, interviewing her there, and eventually formally arresting and detaining her under s. 5 of the Act of 1999. The applicant contended that the eventual formal arrest and detention was tainted by her earlier unlawful arrest and detention and that she was entitled to be released.

The arresting Garda was stationed at Longford Garda Station and had sought to make contact with an individual whose last known address in an apartment in Longford. She and a colleague drove to the address and the applicant opened the door and said that the person in question did not live at the apartment. The exchange was friendly. They discussed the applicant’s accent which the garda thought was American. The garda did not recognise the applicant and had not encountered her in her role as immigration officer for the district. She asked the applicant where she was from and she said that she was from Tanzania. The garda then asked her to produce identification. The applicant said she would get some form of identification and asked the garda to wait. She then closed the door, leaving the garda outside in the corridor.

The applicant did not attempt to find or produce identification. Instead, she immediately telephoned a man called Mr. Saju and asked for his assistance. The applicant knew that she was the subject of a deportation order and that she had failed to comply with its terms. Her mother was in the apartment also and she was in the same position. The applicant told the court that Mr. Saju told her to wait at the apartment and that he would find a lawyer and come to the apartment.

Approximately five to six minutes elapsed before the applicant returned and opened the door to the garda. Before that, the garda had telephoned her colleague in the patrol car and expressed the view that something was not quite right.

The applicant’s evidence was that when she returned to the door on which the garda had been knocking and opened it, the garda enquired where she had been and where her identification was. The applicant said that she gave no response to this question, but turned around and walked towards the living room. Her evidence was that she knew that the garda would follow her.

The garda’s evidence was somewhat different. She said that, having been waiting a few minutes at the door, she began knocking on the door. She admitted to having been somewhat exasperated by the length of time she was left at the door and because of the suspicions she had that something was awry. She said that when the applicant opened the door, she apologised and made a gesture with her hand and arm in a swinging movement, inviting her to enter. She then followed the applicant, who had walked ahead of her, to the living room.

The applicant and the garda then sat down and the applicant informed her that she had no identification document because she had given her passport to a man called Mr. Saju. She explained that Mr. Saju owned the apartment and allowed her to stay there with her mother, rent free. It emerged that the applicant’s mother was in a bedroom close to the living room, the door of which was locked. The applicant informed the garda that she had been living in the apartment for about nine months. According to the garda, the applicant indicated, gesturing to her mobile phone, that she had been speaking to her solicitor. The garda noticed a man in the background. It emerged that two men also lived in the apartment, about whom the applicant knew very little. The man in the background, it later emerged, was a Mr. Ram.

During the time when the garda and the applicant were in the living room, the applicant took a telephone call. The applicant said that it was Mr. Saju who again told her to remain in situ and to wait for him and the solicitor to arrive. The garda gave different evidence, and said that at no point did the applicant ever say that she wished to wait in the apartment until Mr. Saju and/or a solicitor arrived. The garda and the applicant then went to the door of the bedroom and the applicant spoke through the door to her mother. The mother opened the door and the garda went inside. The applicant told the garda that her mother’s leg was sore and she had difficulty walking.

The garda became very suspicious about the circumstances of the applicant and suspected that someone was controlling her and her mother, particularly bearing in mind that a man had possession and control of the applicant’s passport and accommodated her and her mother rent free in an apartment and provided food to them. The garda expressed these fears to the applicant and her mother in a way which led them to understand that she believed that there was a possibility that the applicant was engaged, against her will, in prostitution and that they were both being detained against their will. The garda invited the applicant and her mother to come to the Garda station so that they could talk more freely, and she said that they agreed to accompany her. The garda said that on three occasions, twice in the apartment and when they went outside to the patrol car, she indicated, in express terms, that the applicant and her mother were not under arrest and were not under any obligation to come to the station.

The applicant claimed that she felt that if she did not accompany the garda, she would have to leave in handcuffs. She contended that the garda was exercising dominion over her and her mother, to the extent that she felt that she had no choice but to accompany her to the garda station.

The two Gardai, accompanied by the applicant, her mother and Mr. Ram entered the station by the back door. Mr. Ram sat in the public area of the station and the applicant and her mother accompanied the arresting garda to her office where further questions and conversation took place about the nature of their status in Ireland and their relationship with Mr. Saju. The applicant and her mother then disclosed that they had made false asylum applications and they told her their real names and their aliases.

The garda then telephoned an immigration officer in Sligo Garda Station to discuss how the matter might be handled and what steps might be taken in a case where trafficking, enforced prostitution or other mischief was suspected. She gave him the names and aliases of the applicant and her mother. At this stage, Mr. Saju arrived at the garda station. The garda asked the applicant and her mother to wait in a public room in an unguarded and unwatched part of the station, next to the main door. She then conducted an interview with Mr. Saju and Mr. Ram. During the course of that interview, her colleague from Sligo telephoned her to say that he had checked the names she had given him and had established that there were extant deportation orders against the applicant and her mother and that they were in breach of them.

The garda went immediately to the room in the public part of the garda station where the applicant and her mother were waiting. She was aware that they were unguarded and could at any time leave the station. She informed them that she knew of the deportation orders and arrested and detained them under s. 5 of the Immigration Act 1999.

The applicant claimed that that arrest and detention was tainted by what she said was an earlier, de facto, arrest and detention in her apartment, and hence unlawful.

The court upheld the legality of her detention.
The court noted a number of untruths which the applicant had told in the course of her dealings with the garda and in her evidence to the court, namely:-

  1. she said she could not remember the names of the men who lived in the apartment and later admitted that she had lied about this;
  2. she told the arresting garda that she would get some form of identification when she knew that she had none in the apartment;
  3. she told the arresting garda that she had been on the phone to a solicitor when her evidence to the court was that she was on the phone to Mr. Saju;
  4. she told the arresting garda she had been living in the apartment for nine months but she subsequently told the court that she had lived there for three weeks;
  5. she told the arresting garda and the court that she had given her passport to Mr. Saju for safekeeping so that it would not be lost. She eventually admitted to the court that she had given her passport to Mr. Saju so that it would not be found on her person or amongst her things;
  6. she admitted making a false asylum claim, based on a false nationality and name;

The court held that the applicant was an unreliable witness who was willing to lie under oath. The arresting garda, by contrast, was scrupulously honest. The court preferred the evidence of the arresting garda in respect of each point of conflict that had arisen between her and the applicant.

In particular, it accepted that the applicant non¬verbally invited the arresting garda into her home and that that invitation was further extended when the applicant brought her to the bedroom where her mother was situated. It accepted that at no point did the applicant ever tell the arresting garda that she wished to wait in the apartment until her solicitor arrived. It also accepted the evidence of the arresting garda that she had told the applicant on three occasions that she and her mother were not under arrest and were not required to accompany her to the Garda station. The court held that the arresting garda was motivated by a genuine concern, based on the facts as she saw them, for the welfare of the applicant and of her mother.

The court also held that before the arresting garda discovered that there were deportation orders in being, she was entitled to arrest the applicant and her mother because of their failure to provide valid identification on demand under s. 12 of the Immigration Act 2004, as amended by s. 34 of the Civil Law (Miscellaneous Provisions) Act 2011. That she did not do so suggested that her predominant concern was with their welfare and that they might be victims of serious crime.

The applicant submitted that s. 12 of the Act of 2004 was the only power available to an immigration officer to demand production of a non-national’s registration certificate or passport. She argued that the garda was not entitled to request identification documents at a time when she was in her home, notwithstanding the fact that the request was made when the garda was outside the home, in the common area. She submitted that the request constituted an unlawful search of the dwelling, contrary to Article 40.5 of the Constitution which provides for the inviolability of the dwelling. In addition, she argued that because the request created circumstances in which a criminal offence might be committed if the demand were not answered, that also constituted a breach of the inviolability of the dwelling.

The court held that the request made by the garda that the applicant produce identification could not be deemed a search of her dwelling. It also held that the fact that the failure to produce identification constituted a criminal offence did not, where the failure to produce happened within a dwelling, result in a violation of the dwelling. It held that the State was not precluded by the provisions of Article 40.5 from criminalising conduct which occurred in a dwelling. Accordingly, it rejected the contention that the consent to enter the dwelling was vitiated by an unlawful demand for identification: the demand was lawfully made.

The applicant argued that the only legislative bases permitting entry to a dwelling in connection with immigration matters were s. 15 of the Act of 2004, and s. 7 of the Aliens Act 1935, as amended, and that both required a search warrant and did not authorise entry for the purpose of arrest. The court rejected this, noting that the arresting garda did not enter the dwelling of the applicant to make an arrest or to give effect to a deportation order. Rather, she entered the dwelling at the invitation of the applicant.

The court observed that members of the Gardaí, no more than any other member of the public, absent statutory authority, had no right to enter a dwelling unless consent to such entry had been granted. Consent had be given freely. It noted that, in the instant case, there were compelling features of the interaction between the arresting garda to indicate that such consent was present. Notwithstanding the fact that the arresting garda presented in uniform, identified herself as an immigration officer and clearly displayed the authority and colour of her office, the applicant, who was in breach of a deportation order, had no hesitation in asking her to wait outside the apartment, to close the door on her, and to take five to six minutes to make a telephone call to see what she might do. This indicated that she was aware of her entitlement to exclude the garda from her dwelling. The court found that, on her return to the door, the applicant had decided that she would permit the garda to enter the apartment. The court rejected the argument that the applicant and her mother were compelled to accompany the Gardai to the garda station and were further compelled to remain there under questioning. It held that they consented to the journey and to their presence at the garda station. It rejected the argument that her consent was not free on the basis of her alleged belief that she would have to leave the apartment in handcuffs. The court held that the garda had no intention of arresting or detaining the applicant or her mother and that her sole concern was for their welfare.

The court distinguished the decision of Hogan J. in Omar v. The Governor of Cloverhill Prison which the applicant relied upon to contend that she had been unlawfully detained in her apartment by the garda. It noted that, in Omar, the Gardaí arrived at a dwelling with the sole purpose of removing the family living in it from the State. In the instant case, the garda was not aware of the deportation orders during the long initial stages of her exchanges with the applicant and her mother and she did not arrive at the applicant’s house with any intention to deport the applicant. Indeed, on three occasions she informed the applicant and her mother that they were not required to go with her to the Garda station. She could have arrested them for failure to produce valid identification and for falsifying an asylum claim but did not do so. She also placed them in a public room near the open door of the Garda station when she was interviewing Mr. Ram and Mr. Saju. That, the court held, was illustrative of the lack of restraint placed by her on the liberty of the applicant and her mother. Unlike in Omar, there were no locked doors, no directions given or anything that resembled dominion by the Gardaí over the applicant and her mother, or involuntary submission by them to such dominion.

In conclusion, the court held that the applicant was lawfully arrested, cautioned and detained, and it upheld the validity of her detention.


A person who invites a member of An Garda Siochana into a dwelling and then voluntarily accompanies him or her to a Garda station, where he or she is discovered to be evading deportation and then arrested and detained pursuant to s. 5(1) of the Immigration Act 1999, cannot tenably claim that that arrest and detention are unlawful.

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