Omar v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:[2013] IEHC 579
Nature of Proceedings:Article 40.4 inquiry into legality of detention
Judgment Date/s:18 Dec 2013
Judge:Hogan J.
Category:Deportation, Detention
Keywords:Deportation, Deportation Order, Detainee, Detention
Country of Origin:Tanzania
URL:https://www.courts.ie/acc/alfresco/90478084-45e9-4958-b4b5-297d9850465e/2013_IEHC_579_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
Section 5(1) of the Immigration Act 1999 provides as follows:-

“Where an immigration officer or a member of the Garda Síochána, with reasonable cause suspects that a person against whom a deportation order is in force-
(a) has failed to comply with any provision of the order or with the requirement in a notice under section 3(3)(b)(ii),…
(d) intends to avoid removal from the State.”

The Applicant, his wife and seven year old child, all Tanzanian nationals, were  the subject of deportation orders, the letters notifying them of which obliged them to leave Ireland by the 12th October, 2013, which they had failed to do. They subsequently presented to the Garda National Immigration Bureau (“GNIB”) offices for the purpose of making arrangements for their deportation and were given a new presentation letter, requiring them to present on a future date. Before that date, officers of the GNIB went to their home at night and, upon being invited inside, sought their consent to accompany them to Dublin Airport for the purpose of enforcing their deportation on a pre-booked flight. The GNIB officers then conveyed the Applicant and his family to the airport in two squad cars.

On arrival at the airport they were shown to a waiting room. The Applicant then informed the GNIB officers that he would not board a plane to Tanzania, whereupon he was arrested and detained pursuant to s. 5(1)(d) of the Immigration Act 1999 on the basis that he intended to avoid deportation from the State. He instituted an inquiry under Article 40.4 of the Constitution into the legality of his detention.

The High Court (Hogan J.) held that his detention was unlawful and directed his release.

Reasoning:
First, he held that the GNIB had power under s. 5 of the Act of 1999 to arrest a non-national who had not complied with the terms of a deportation order. As the Applicant and his family had been required to leave the State by the 12th October, 2013, they were therefore liable to arrest under s. 5(1)(a) of the 1999 Act for failure to comply with the terms of the deportation order. He rejected the Applicant’s argument that new presentation letter had the effect of staying the deportation order until the new date on which he and his family were required to present.

Secondly, turning to the legality of the Applicant’s detention, he held that it was unlawful because it had been preceded by a de facto unlawful detention, though he emphasised that there was no question of mala fides, malice or dishonesty on the part of the GNIB officers.

Noting the constitutional guarantee of inviolability of the dwelling contained in Article 40.5, which he said applied to every home in the State irrespective of the nationality or status of its occupants, he observed that no legislation empowered the Gardai to enter a dwelling simply for the purpose of effecting an arrest of a person in respect of whom a deportation order was extant and enforcing that order. He considered that the Applicant and his family could not be construed as having genuinely given consent to their conveyance to the airport, noting inter alia that they had been instructed to pack their belongings and given to understand that they had no option but to accompany the GNIB officers to the airport, and that a GNIB officer had entered the child’s bedroom and rejected its mother’s request to delay travelling to the airport as it was asleep. He buttressed his conclusion that they were not at liberty by holding that it was likely that the doors of the car in which the Applicant had travelled to the airport and the door of the room there, where they were awaiting deportation, had been locked.

He accordingly held that the Applicant was in unlawful custody when he arrived at the airport and that the new arrest could not be considered to be independent of that, as might have enabled his detention on foot of the new arrest to be upheld.

Decision:
The High Court held that the Applicant was in unlawful detention and directed his release.

Omar v. Governor of Cloverhill Prison

Tareeq Omar
Governor of Cloverhill Prison
Facts:
Section 5(1) of the Immigration Act 1999 provides as follows:-

“Where an immigration officer or a member of the Garda Síochána, with reasonable cause suspects that a person against whom a deportation order is in force-
(a) has failed to comply with any provision of the order or with the requirement in a notice under section 3(3)(b)(ii),…
(d) intends to avoid removal from the State.”

The Applicant, his wife and seven year old child, all Tanzanian nationals, were  the subject of deportation orders, the letters notifying them of which obliged them to leave Ireland by the 12th October, 2013, which they had failed to do. They subsequently presented to the Garda National Immigration Bureau (“GNIB”) offices for the purpose of making arrangements for their deportation and were given a new presentation letter, requiring them to present on a future date. Before that date, officers of the GNIB went to their home at night and, upon being invited inside, sought their consent to accompany them to Dublin Airport for the purpose of enforcing their deportation on a pre-booked flight. The GNIB officers then conveyed the Applicant and his family to the airport in two squad cars. On arrival at the airport they were shown to a waiting room. The Applicant then informed the GNIB officers that he would not board a plane to Tanzania, whereupon he was arrested and detained pursuant to s. 5(1)(d) of the Immigration Act 1999 on the basis that he intended to avoid deportation from the State. He instituted an inquiry under Article 40.4 of the Constitution into the legality of his detention.

The High Court (Hogan J.) held that his detention was unlawful and directed his release.

Reasoning:
First, he held that the GNIB had power under s. 5 of the Act of 1999 to arrest a non-national who had not complied with the terms of a deportation order. As the Applicant and his family had been required to leave the State by the 12th October, 2013, they were therefore liable to arrest under s. 5(1)(a) of the 1999 Act for failure to comply with the terms of the deportation order. He rejected the Applicant’s argument that new presentation letter had the effect of staying the deportation order until the new date on which he and his family were required to present.

Secondly, turning to the legality of the Applicant’s detention, he held that it was unlawful because it had been preceded by a de facto unlawful detention, though he emphasised that there was no question of mala fides, malice or dishonesty on the part of the GNIB officers.
Noting the constitutional guarantee of inviolability of the dwelling contained in Article 40.5, which he said applied to every home in the State irrespective of the nationality or status of its occupants, he observed that no legislation empowered the Gardai to enter a dwelling simply for the purpose of effecting an arrest of a person in respect of whom a deportation order was extant and enforcing that order. He considered that the Applicant and his family could not be construed as having genuinely given consent to their conveyance to the airport, noting inter alia that they had been instructed to pack their belongings and given to understand that they had no option but to accompany the GNIB officers to the airport, and that a GNIB officer had entered the child’s bedroom and rejected its mother’s request to delay travelling to the airport as it was asleep. He buttressed his conclusion that they were not at liberty by holding that it was likely that the doors of the car in which the Applicant had travelled to the airport and the door of the room there, where they were awaiting deportation, had been locked.

He accordingly held that the Applicant was in unlawful custody when he arrived at the airport and that the new arrest could not be considered to be independent of that, as might have enabled his detention on foot of the new arrest to be upheld.

Decision:
The High Court held that the Applicant was in unlawful detention and directed his release.

A non-Irish national who is subject to a deportation order and who fails to leave the State by the date specified therein or in the letter notifying him or her of same, is liable to arrest and detention under s. 5(1)(a) of the Immigration Act 1999.

Article 40.5 of the Constitution containing the guarantee of inviolability of the dwelling and prohibiting entry into same save in accordance with law applies to all homes in the State, irrespective of the nationality or status of the occupants.

An arrest and detention of a non-Irish national may be unlawful because it was preceded by an earlier de facto detention for which there was no lawful basis. The fact that such a detention occurred without mala fides, malice or dishonesty on the part of the detainer will not necessarily prevent it from being unlawful.

Principles:

A non-Irish national who is subject to a deportation order and who fails to leave the State by the date specified therein or in the letter notifying him or her of same, is liable to arrest and detention under s. 5(1)(a) of the Immigration Act 1999.

Article 40.5 of the Constitution containing the guarantee of inviolability of the dwelling and prohibiting entry into same save in accordance with law applies to all homes in the State, irrespective of the nationality or status of the occupants.

An arrest and detention of a non-Irish national may be unlawful because it was preceded by an earlier de facto detention for which there was no lawful basis. The fact that such a detention occurred without mala fides, malice or dishonesty on the part of the detainer will not necessarily prevent it from being unlawful.

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