This case involved an application brought under Article 40.4.2 of the Constitution of Ireland. The Applicant, Ervis Troci, an Albanian national, was arrested pursuant to s. 5(1) (d) of the Immigration Act 1999. He had sought asylum, and his application had been rejected and he subsequently sought to remain in the State for humanitarian reasons. While in the State, the Applicant met Sharon Healy, an Irish citizen, and the couple ultimately married. After the Applicant was issued with a deportation order, he applied for it to be revoked in light of his marriage to Ms Healy.
The Applicant attended at the offices of the Garda National Immigration Bureau (GNIB), the unit responsible for the operation of deportation orders, on more than 15 occasions. On 25 October 2011 the Applicant attended the GNIB as directed, and was brought upstairs for an interview with detectives. The Applicant was first asked if he was willing to travel home. He replied “I am married here. I don’t have to go home”. The Applicant was then asked whether he was willing to go home. He replied in the negative. The Gardai checked with the Department of Justice whether any High Court proceedings in respect of the Applicant were outstanding, and, after confirming there were no such proceedings, the Applicant was arrested pursuant to s. 5(1) (d) of the Immigration Act 1999, which provides that:
“Where an immigration officer or a member of the Garda Siochana, with reasonable cause suspects that a person against whom a deportation 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.”
The Court stated that it is clear from the statutory language that the test is an objective one (Om v Governor of Cloverhill Prison [2011] IEHC 341; Walshe v Fennessy [2005] IESC 51, [2005] 3 IR 51 followed; McKee v Chief Constable of the RUC [1996] UKHL 6, [1997] AC 286; Dallison v Caffrey [1965] 1 QB 348 cited with approval]. The Court stated that there was no question but that the Gardai acted bona fide, but that what has to be asked is whether a reasonable person, armed with the appropriate information and looking at the matter with objective detachment, might reasonably suspect that the applicant would evade deportation. The Court opined that at one level a reasonable person might suspect that every person who is the subject of a deportation order would be tempted to evade deportation, but that this cannot be the standard of suspicion since this would mean that the State would have to detain all asylum seekers pending deportation. The Court was driven to conclude that the suspicion must refer to some overt act or deed, including statements, on the part of the arrested person, or some external piece of intelligence which suggests that there is a risk that such a person will seek to evade deportation. The Court opined that relevant examples are
(a) presenting with a false identity;
(b) failing to present at a Garda station; and
(c) reliable intelligence that a person plans to escape.
The Court stated that the Applicant’s first response to the Gardai amounted to little more than his saying that he preferred to stay in Ireland, while his second response amounted to his saying that he would not voluntarily travel home. The Court found that this cannot in itself mean that the Applicant would take active steps to avoid deportation, opining that there is often a wide gulf between the voluntary act and the legal obligation, noting that few but the noble would volunteer to pay tax if it was voluntary. The Court commented that, on reflection, the reasonable person would have cross examined the Applicant further regarding his intentions to evade deportation.
