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
URL:http://www.courts.ie/Judgments.nsf/0/239BC78A48BE7C0280257CD3002D9379
Geographic Focus:Ireland

Facts: 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 … Read More

Principles:

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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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 … Read More

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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Jin Liang Li v Governor of Cloverhill Prison

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Li
Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:[2012] IEHC 493
Nature of Proceedings:Application pursuant to Article 40.4 of the Constitution
Judgment Date/s:28 Nov 2012
Category:Detention, Refugee Law
Keywords:Asylum, Asylum (Application for), Detainee, Detention, Detention Facility, Enforcement Measure, Illegal Stay, Migrant (Illegally resident / staying), Non-national, Overstay(er), Refugee, Removal, Repatriation, Return (Forced), Third-Country national found to be illegally present
Country of Origin:China
URL:https://www.courts.ie/acc/alfresco/a7c7aa7f-d1f0-445a-a68d-2aa94dc25131/2012_IEHC_493_1.pdf/pdf#view=fitH

Facts The applicant was a Chinese national who was living in the State for approximately 13 years, having overstayed his visa entitlements and had been working illegally. The applicant refused to cooperate in obtaining travel documents for him and it later transpired that he had another valid passport unknown to the Irish authorities. He was arrested and as arrangements were … Read More

Principles:

The power to arrest an asylum applicant under section  9(8)(a) of the Refugee Act and detain him or her for up to 21 days is a form of preventive civil detention.

Given the constitutional guarantee in Article 40.4.1 the objective necessity for such detention must be compellingly established. The constitutional considerations must inform, and by necessity, delimit these powers to arrest and detain a person. The words ‘public order’ are juxtaposed beside ‘national security’ and this meant that the phrase ‘public order’ must be given its narrower and more restricted meaning. In that context the reference to public order referred to the threat posed to fundamental state interests by the likely conduct or even, in particularly unusual cases, the very presence of the applicant for asylum in the State.

Conduct which flouted the immigration regime, such as not cooperating or working illegally, was not conduct which threatened fundamental state interests.

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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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Troci v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:Unreported High Court (Hogan J) 2nd November 2011 2011 IEHC 405
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:02 Nov 2011
Judge:Hogan G.
Category:Deportation
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Decision, Family Life (Right to), Family Unity (Right to), Third-Country National, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Albania
URL:https://www.courts.ie/acc/alfresco/2cb16ab5-b669-4336-a856-160050889e46/2011_IEHC_405_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

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 … Read More

Principles:The suspicion on the part of an immigration officer or member of the Garda Siochana underpinning the arrest of a person against whom a deportation order is in force under s. 5(1)(d) of the Immigration Act 1999, 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.
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Ejerenwa v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:Supreme Court
Citation/s:2011 IESC 41, 28th October 2011, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:28 Oct 2011
Judge:Denham C.J.
Category:Deportation, Detention
Keywords:Asylum Seeker, Border Crossing, Deportation, Detainee, Detention, Entry (Illegal), 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
URL:https://www.courts.ie/acc/alfresco/e9112918-ca1e-4951-b432-19ca4e38ba69/2011_IESC_41_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an appeal to the Supreme Court in respect of an application brought under Article 40.4.2 of the Constitution of Ireland. The High Court had found that the Applicant’s detention was in accordance with law. The Applicant appealed this to the Supreme Court. On the evening of 1 August 2011, Gardai stopped a bus which had crossed the … Read More

Principles:
  1. A detention order should contain clear information on its face as to the basis of its jurisdiction. In respect of s. 5(2)(a) of the Immigration Act 2003, in particular, it is necessary for a detention order to state on its face which provision or provisions of s. 5(1) of that Act apply.
  2. A warrant of detention is not required to make statements of law, and it is not necessary for a detention order to show on its face the time permitted for detention, where the period permitted for detention is a matter of general law and/or provided by statute.
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Om v Governor of Cloverhill Prison

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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
URL:https://www.courts.ie/acc/alfresco/bcf48dda-1963-4d70-b922-1aab45121c45/2011_IEHC_341_1.pdf/pdf#view=fitH
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, … Read More

Principles:
  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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