Khadri v Governor of Wheatfield Prison

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Respondent/Defendant:Governor of Wheatfield Prison
Court/s:Supreme Court
Citation/s:[2012] IESC 27
Nature of Proceedings:Appeal
Judgment Date/s:10 May 2012
Judge:Supreme Court (Fennelly J, Clarke J, MacMenamin J) (all three judges delivered judgments)
Category:Deportation, Detention
Keywords:Absconding, Absconding (Risk of), Deportation, Deportation Order, Detainee, Detention, Detention Facility, Enforcement Measure, Removal, Repatriation, Return (Forced)
Country of Origin:Algeria
URL:https://www.courts.ie/search/judgments/%22%20type%3AJudgment%22%20AND%20%22filter%3Aalfresco_radio.title%22%20AND%20%22filter%3Aalfresco_NeutralCitation.%5B2012%5D%20IESC%2027%22
Geographic Focus:Ireland

Facts The applicant was an Algerian national and was the subject of a deportation order but he evaded the implementation of the order. He was arrested and detained on the basis of Section  5 of the Immigration Act 1999 including that he: failed to comply with a provision of the deportation order; failed to comply with a requirement in a … Read More

Principles:

Section 5(6)(a) of the Immigration Act 1999 prohibits detention for any single period of more than 8 weeks and  also prohibits multiple detentions of periods of less than 8 weeks, where the total period exceeds 8 weeks. 

The Court cannot adopt a flexible or purposive interpretation of a provision designed to protect personal liberty, particularly where such an interpretation would not be in accordance with the clear language of the Oireachtas.  

There are sound policy reasons for imposing a time limit on a form of detention that might, if it could be open-ended, be considered unjust, and possibly unconstitutional. The reason for imposing a time limit on the aggregate amount of detention was to prevent the use of multiple periods to get round the eight week limit.

There are fundamental issues of the right to liberty at stake and an applicant is entitled to rely on a literal interpretation of the provisions.

The effect of Section 5(6)(a) is that an applicant may benefit from his own wrongdoing  and where a deportation can be defeated by unlawful actions by an individual about to be deported, this was for the legislature to remedy and required legislative intervention.

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