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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