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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Okunade v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 49
Nature of Proceedings:Appeal
Judgment Date/s:16 Oct 2012
Judge:Supreme Court (Clarke J delivered judgment for a unanimous Court) (Denham C.J, Hardiman J, Fennelly J, O'Donnell J)
Category:Deportation, Residence
Keywords:Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Migrant (Illegally resident / staying), Minor, Non-national, Removal, Repatriation, Residence
URL:https://www.courts.ie/acc/alfresco/d25e51cd-9709-48e1-8b57-e167c5657e0d/2012_IESC_49_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicants were Nigerian nationals whose asylum claims had been refused and who had made applications for subsidiary protection in the State and also applied to the Minister for permission to remain in the State for humanitarian reasons (“leave to remain”). The minor applicant was four years of age and was born in Ireland. He was not an Irish … Read More

Principles:

The Court considered the proper test for the granting of a stay or an injunction which has the effect of preventing an otherwise valid measure or order from having effect pending trial, while the court is also attempting to determine a regime which is necessary to properly protect the interests of all parties pending the full trial. The underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice and that underlying principle remains the same whether or not the court is considering whether to place a stay on a measure or to grant an injunction.  The court must act in all cases so as to minimise the risk of injustice and that same underlying principle applied in any application in the context of judicial review.

The entitlement of a country to exercise a significant measure of control, within the law, of its borders was an important aspect of public interest of any state. Therefore, a significant weight needed to be attached to the implementation of decisions made in the immigration process which are prima facie valid and a high weight should be placed on the need to respect orders and decisions in the immigration process unless and until they are found to be unlawful. However, the Court considered the possible injustice to an applicant is a factor which must also be given weight, independent of any additional consequences which may be said to flow from deportation on the facts of an individual case.

However, in the absence of any additional factors on either side, then the position of the Minister would win out. The default position was that an applicant will not be entitled to a stay or an injunction. It may be that on the facts on any individual case, there are further factors that can properly be taken into account on either side.

If an applicant could demonstrate that a deportation, even on a temporary basis, would cause more than the ordinary disruption in being removed from a country, such as a particular risk to the individual or a specific risk of irremediable damage then such facts, if they were sufficiently weighty, could readily tilt the balance in favour of the injunction or a stay. Where, on an arguable basis, the High Court was faced with a situation where there was a credible basis for suggesting a real risk of significant harm to the applicant if they were to be deported, it would require very weighty considerations indeed to displace the balance of justice on the facts of that case.

Also all due weight needed to be attached to the undesirability of disrupting family life involving children, where after a successful judicial review or any other process, the children might be allowed to remain in or return to Ireland. 

At the stage of deciding on whether to grant a stay or an injunction the court has to decide on where the least risk of injustice lies, and the weight to be attached to any such difficulties will necessarily depend on the facts of the case, and such difficulties are not necessarily decisive, but are one factor to be taken into account.

The strength of the case can be taken into account provided that the assessment of the strength of the case does not involve analysing disputed facts or dealing with complex issues of law.

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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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Debisi v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:2nd February, Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Feb 2012
Judge:Cooke J
Category:Refugee Law
Keywords:Asylum application (Examination of an), Deportation, Deportation Order, Protection (Application for International), Protection Status (Subsidiary), Refugee, Removal, Removal Order
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/a7137d48-a7be-4ce0-ad03-81fe704b3670/2012_IEHC_44_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

The applicant had been refused asylum by the Refugee Applications Commissioner, and withdrew his appeal to the Refugee appeals Tribunal on the basis that his fear of serious harm in Nigeria was not one with a Convention nexus. His subsequent application for subsidiary protection, which was based on the same facts as his asylum claim, purported to reject the Commissioner’s … Read More

Principles:

There is no obligation on the Minister to reconsider a subsidiary protection applicant’s credibility in the absence of new evidence, information or other basis capable of demonstrating that the original findings were vitiated by material error on the part of the decision maker.

It may be that the fair procedures require the Minister for Justice to interview an applicant for subsidiary protection who seeks to rely upon a risk of harm from a source not previously considered in the asylum process. The deportation process is interrupted by the requirement to determine the subsidiary protection application. It is in the sense of resuming or continuing the procedure initiated with the notification of the deportation proposal that the words ‘proceed to consider’ are used in Regulation 4(5) of the European Community (Eligibility for Protection) Regulations 2006.

The work done by officials in the Department of Justice in preparing an examination of file re deportation is preparatory work only, and may be undertaken before a subsidiary protection application is determined. The Minister remains entirely free to make his own judgment on the case.

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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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PJ & Ors v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:19 October 2011, 2011 IEHC 433, Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Oct 2011
Judge:Hogan J.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Family Life (Right to), Protection (Humanitarian), Removal, Removal Order, Third-Country national found to be illegally present
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/c639b2992f99484c8025798800520265
Geographic Focus:Ireland

The applicants had sought leave to challenge their deportation orders, and the respondent refused to undertake not to deport them beyond a certain date. The applicants sought an interlocutory injunction restraining their deportation. The issues before the Court were whether the applicants were entitled to an interlocutory injunction pending the determination of the leave application, and, if so, whether the … Read More

Principles:

The phrase ‘stay of proceedings’ in Order 84 rule 20(7)(a) of the (N.B., pre 2012) Rules of the Superior Courts should be interpreted by reference to its basic underlying purpose, namely, to ensure that the High Court can make an order with suspensive effect in respect of both administrative, including deportation, as well as judicial decisions. The grant of a stay under r. 20(7(a) of the (N.B., pre 2012) Rules of the Superior Court is not governed by Campus Oil principles. Rather, an applicant is entitled to a stay pending the outcome of a leave application, absent special circumstances.

Special circumstances may include where the proceedings are doomed to fail or where there was no reasonable prospect that leave would be granted. While the mere fact that of medical resources in an applicant’s country of origin being significantly worse than those available in Ireland will not in itself justify judicial intervention, s. 3 of the Immigration Act 1999 presupposes that all relevant considerations, including humanitarian considerations, will be fairly examined prior to the making of a deportation order.

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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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          Efe and Others v Minister for Justice, Equality and Law Reform and Others (No.2)

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          Respondent/Defendant:Minister for Justice, Equality and Law Reform and Others
          Court/s:High Court
          Citation/s:[2011] IEHC 214
          Nature of Proceedings:Judicial Review
          Judgment Date/s:07 Jun 2011
          Judge:Hogan J.
          Category:Deportation
          Keywords:Deportation, Deportation Order, Removal
          Country of Origin:Nigeria
          URL:https://www.courts.ie/acc/alfresco/c9d36605-6e94-4b9f-bf50-5aff55ae6514/2011_IEHC_214_1.pdf/pdf#view=fitH
          Geographic Focus:Ireland
          References:Meadows v. Minister for Justice, Equality and Law Reform

          The Applicants were a family of Nigerian origin. Ms Efe had been given permission to remain in the state on the basis of the IBC/05 scheme, but such permission had been denied to Mr Efe, the children’s stepfather, who had been issued with a deportation order. The Applicants challenged the deportation order on the grounds that the substantive common law … Read More

          Principles:The substantive common law rules of judicial review - namely the doctrines of reasonableness, rationality and other related rules – provide an ‘effective remedy’ against breach of rights under the Constitution and the European Convention on Human Rights (ECHR) as required by Articles 40.3.1 and 40.3.2 of the Constitution and Article 13 of the ECHR.
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          Raducan and Raducan v Minister for Justice, Equality and Law Reform and Others

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          Respondent/Defendant:Minister for Justice, Equality and Law Reform and Others
          Court/s:High Court
          Citation/s:[2011] IEHC 224
          Judgment Date/s:03 Jun 2011
          Judge:Hogan J.
          Category:Detention, EU Treaty Rights
          Keywords:Detention, EU Treaty Rights, Family Member, Removal, Residence Permit, Third-Country National, Union Citizen
          Country of Origin:Romania and Moldova
          URL:https://www.courts.ie/acc/alfresco/3a677548-57b6-48b6-9f85-310d35a37e8b/2011_IEHC_224_1.pdf/pdf#view=fitH
          Geographic Focus:Ireland

          Mr Raducan was Romanian and Ms Raducan was Moldovan. They married in Romania in 2007. The moved to Ireland in 2007 and in 2010 they returned briefly to Romania. While there, they obtained a certified copy of their marriage certificate. Ms Raducan also obtained a residence card as a family member of a Union citizen. They returned to Ireland on … Read More

          Principles:

          The procedures at Dublin Airport for spouses of EU citizens are inconsistent with the Citizenship Directive

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