Abbas v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 25 September 2015
• Neutral Citation: [2015] IEHC 600
• Court: High Court
• Date: 25 September 2015

[2015] IEHC 600

THE HIGH COURT

Record No: 1437/SS/2015

Abbas v Governor of Cloverhill Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

MOUSTAFA MOHAMED ALY ABBAS

APPLICANT

-AND-

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Asylum, Immigration & Nationality – Deportation – Art. 40.4.2 of Constitution – The Immigration Act, 1999 (Deportation) Regulations, 2005 – The Immigration Act, 1999

Facts: The present proceedings concerned an inquiry pursuant to art. 40.4.2 of the Constitution on the basis of the applicant's allegation that his detention was illegal as only the Garda who arrested the applicant might detain him relying on the decision of Eagar J. in Ononkwange v The Governor of the Dochas Centre delivered on 24 July, 2015.

Ms. Justice Donnelly granted an order for the release of the applicant pursuant to art. 40.4.2 of the Constitution. The Court held that the jurisdiction to detain a person in a designated place under the Immigration Act 1999 arose where a Garda had arrested a person on the basis of a reasonable suspicion that he was the person against whom a deportation order was in force and that there had been compliance with at least one of the provisions of s. 5 (1) of the said Act of 1999. The Court observed that even if there was a delegation of power by the arresting Garda to the other Garda for the purposes of detaining a person, it was mandatory that the document forming the basis of such detention must contain the basis of jurisdiction to detain. The Court found that there was lack of understanding of the basis of the arrest and detention of the applicant and the information provided in the notification order was incomplete and failed to satisfy the requirements of the Immigration Act, 1999 (Deportation) Regulations, 2005 and thus, the said notification order was defective in law.

1 1. The Applicant is the subject of a Deportation Order. He unsuccessfully challenged the making of the Order by way of judicial review. He has a further outstanding judicial review of the failure of the Minister to revoke the Deportation Order. It is unnecessary to detail further the history leading up to the relevant events which begin on 8 ^th September, 2015.

2 2. On 8 ^th September, 2015, the applicant attended the offices of the Garda National Immigration Bureau ("GNIB") at Burgh Quay as he was required to report there on that date. He was arrested and subsequently detained in Store Street Garda Station. What is termed a detention order was supplied by Sergeant Doyle to the Member in Charge. That detention order is headed "An Garda Síochána, Immigration Act, 1999 (as amended) (No. 22 of 1999), Notification of Detention". The notification of detention recites that Sergeant James Doyle "[i]n exercise of the powers conferred on me by Section 5 of the Immigration Act, 1999, as amended and by the Immigration Act, 1999 (Deportation) Regulations, 2005 ( S.I. No. 55 of 2005), as amended made in exercise of the powers conferred by Section 7 of the Immigration Act, 1999 (No. 22 of 1999) as amended, on (Day) Tuesday the (Date) 8/9/2015 I arrested Moustafa Ali Abbas D.O.B. 13/11/1979 and I direct that pending the making of arrangements for his removal from the State that the said Moustafa Abbas be detained in Store St. Garda Station a prescribed place of detention for the purpose of Section 5(1) of the Immigration Act, 1999 (No. 22 of 1999) as amended."

3 3. Sergeant Doyle indicated that the basis of such arrest and detention is "that I with reasonable cause suspect[ed] that the said person against whom a deportation order is in force: (a) has failed to comply with a provision of the order, and (b) has failed to comply with a requirement in a notice under Section 3 (3)(b)(ii)."

4 4. On the morning of 9 ^th September, 2015, Detective Garda Conor Boland went to Store Street Garda Station for the purpose of "releasing [the applicant], from his detention there into my custody and escorting him to Dublin Airport for the purpose of removing him from the State." He was aware of the Deportation Order and of the failure of the applicant to comply with it. Detective Garda Boland and his colleagues from GNIB sought to bring the applicant to Dublin Airport to put him on a flight leaving the State. There is disagreement between the applicant and the Gardaí as to the nature of his resistance to the deportation but it is unnecessary to explain further. Suffice to say that the applicant resisted his deportation and that as a result of his behaviour, it was necessary to abort the attempt to remove him from the State.

5 5. In his affidavit, Detective Garda Boland states that a colleague went to the GNIB offices in Dublin Airport and "he returned a few minutes later with a detention order." Garda Boland says he explained to the applicant that he would be detained in Cloverhill Prison pending his removal from the State. Garda Boland states that he "handed over the detention order" to the Assistant Chief Officer at Cloverhill Prison and explained to him "that [Garda Boland] had detained Moustafa Mohamed Ali Abbas on foot of the deportation order."

6 6. An application for an enquiry pursuant to Article 40.4.2 of the Constitution was made on 15 ^th September, 2015. The affidavit of the solicitor grounding the application for the enquiry exhibited a detention order under which she said her client was being detained in Cloverhill Prison. This detention order, or more properly this document entitled "Notification of Detention", is the same detention order that the Governor of Cloverhill Prison has certified in writing, pursuant to the Order of 15 ^th September, 2015 as the grounds for the applicant's detention.

7 7. The detention order is in similar, but not identical terms, to the original detention order lodged in Store Street Garda Station above. It is signed by Detective Garda Boland and it reads: "In exercise of the powers conferred on me by Section 5 of the Immigration Act, 1999, as amended, and by the Immigration Act, 1999 (Deportation) Regulations, 2005 ( S.I. No. 55 of 2005), as amended made in exercise of the powers conferred by Section 7 of the Immigration Act, 1999 (No. 22 of 1999) as amended, on (Day) Wednesday the (Date) 09/09/2015 I arrested Moustafa Mohamed Ali Abbas D.O.B. 13/11/1979 and I direct that pending the making of arrangements for his removal from the State that the said Moustafa Mohamed Ali Abbas be detained in Cloverhill Prison, a prescribed place of detention for the purpose of Section 5(1) of the Immigration Act, 1999 (No. 22 of 1999) as amended."

8 8. Detective Garda Boland indicated on that form that the basis of the arrest and detention was that he, Detective Garda Boland, "with reasonable cause suspect[ed] that the said person against whom a deportation order is in force: (a) has failed to comply with a provision of the order and (e) intends to avoid removal from the State."

9 9. From the affidavit of the solicitor for the applicant, it appeared that the grounds upon which the Article 40 enquiry was moved related to issues arising from the detention at Store Street Garda Station and at Dublin Airport. The High Court made an Order directing the production of the applicant before the Court and that the Governor of Cloverhill Prison certify the grounds of the applicant's detention in writing. That was made returnable to the same day. The matter was then adjourned to the 18 ^th September, 2015 and then to be heard before me on the 21 ^st September, 2015. On that date, counsel for the respondent objected to the matter proceeding as it now appeared that the applicant was relying on a separate issue, that is the fact that it was Detective Garda Boland who detained him in Cloverhill Prison. After hearing both sides, I adjourned the matter to 2pm on 22 ^nd September, 2015.

10 10. In her principle submission, counsel for the applicant relied upon a recent decision of Eagar J. in Ononkwange v. The Governor of the Dóchas Centre, delivered on 24 ^th July, 2015. This case is under appeal and there is no written judgment available. It is agreed by both parties that Eagar J. held that when a Garda or Immigration Officer arrests a non Irish national pursuant to s. 5(1) of the Act of 1999, the arresting Garda or Immigration Officer must personally detain the non-Irish national in a prescribed place and cannot delegate the responsibility for doing so to another Garda. In that case, the original arresting Garda detained the non Irish national in a Garda Station and another Garda brought the applicant to Dóchas Prison.

11 11. Counsel for the applicant submits that this Court is bound by that decision. In response to the submission from the respondent that the decision was given without consideration of, and contrary to, relevant authorities, she submits that authorities were opened and that the decision is correct.

12 12. In reliance on the Supreme Court decision of Kadri v. Governor of Wheatfield Prison [2012] IESC 27, and while acknowledging that a different provision of the section was at issue therein, counsel submits that in interpreting s. 5(1) "the court cannot adopt a flexible or purposive interpretation of a provision designed to protect personal liberty, all the more so when such an interpretation would do violence to the clear language of the Oireachtas." In her submission, the interpretation of s. 5(1) is clear: only the Garda who arrested the person may detain the person. With respect to the word "detain", while counsel may be prepared to accept that the continued physical act of detention in a prescribed place is to be carried out by a Member in Charge or a Governor, she submits that the person standing over the detention must be one and the same as the person who made the arrest. Counsel says that this interpretation flows from the reference...