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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