Adebayo v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 27 October 2004
• Neutral Citation: [2004] IEHC 359
• Court: High Court
• Date: 27 October 2004

[2004] IEHC 359

THE HIGH COURT

[2004] IEHC 359

Record Nos.589 SS; 590 SS; 591 SS; 592 SS/2004

ADEBAYO v. COMMISSIONER OF AN GARDA SIOCHANA & MINISTER FOR JUSTICE

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND THE HABEAS CORPUS ACT, 1782

BETWEEN:

Bosun Adebayo;

Peter Chinedu Igwe;

Folashade Jacob, Oyeshola Jacob, Ronke Jacob;

Jide Johnson Odunukan

APPLICANTS

AND

Commissioner of An Garda Siochana and The Minister for Justice Equality and

Law Reform

RESPONDENTS

Citations:

IMMIGRATION ACT 1999 S5

RSC O.41 r8

ARLIDGE EADY & SMITH ON CONTEMPT (1999) 2ED 755

QUINN, STATE V RYAN 1965 IR 70

IMMIGRATION ACT 1999 S5(1)

IMMIGRATION ACT 1999 S5(1)(d)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(b)

ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

MURPHY V GREENE 1990 2 IR 566

BARNARDO V FORD 1892 AC 326

CONSTITUTION ART 40.4.2

SHARPE THE LAW OF HABEAS CORPUS 2ED 178–179

CONDON V MIN FOR LABOUR 1981 IR 62

MCGLINCHEY V GOV OF PORTLAOISE PRISON 1988 IR 671

IMMIGRATION ACT 1999 S5(2)

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2002 SI 103/2002

Abstract:

Immigration - Asylum - Judicial review - Constitutional right of access to court - Deportation before hearing of judicial review proceedings challenging deportation - Whether Commissioner of An Garda Siochana should be penalised for contempt of orders of High Court - Whether fact that applicants outside State bar to remedy by way of habeas corpus - Inherent jurisdiction of court to fashion remedy to meet unusual facts

The applicants lodged judicial review proceedings challenging the validity of deportation orders. The applicants' solicitor learnt that the applicants would be deported before the return dates for the applications. On the night of their deportation Gilligan J. granted injunctions restraining their deportation. However, by the time the applicants' solicitor eventually got through to the authorities in Dublin airport, the plane carrying the applicants was already airborne. These were applications for habeas corpus and to attach and commit or otherwise penalise the Commissioner of An Garda Siochana for contempt of the orders of the High Court.

Held by Peart J. in ordering, on the basis of the existence of a constitutional right of access to the courts requiring their presence in the State for its vindication, that the applicants should be facilitated in their return to the State for the purpose of continuing to prosecute their judicial review proceedings in respect of the deportation orders made against them and upon arrival they should be permitted to re-enter pending final determination of those proceedings. The deliberate disobedience of a court order was a matter of the utmost gravity but there could be no doubt that the Commissioner was never aware of the making of the order. The fact that the applicants were outside the State was a bar to any remedy by way of habeas corpus where the facts indicated that the applicants were no longer under the control of persons amenable to the court's jurisdiction.

Reporter: R.W.

1 Mr Justice Michael Peart delivered the 27th day of October 2004 :

2 For the sake of convenience I will deal with these four sets of proceedings as one for the purpose of my judgment and refer, for the most part, to all the applicants collectively as "the applicants". Where I wish to refer to any particular group of applicants as opposed to all collectively, I will do so by reference to the particular surname, the reason being that there are some factual differences between the various groups of applicants relating to matters which predate the date of their arrest and removal from the State on the evening of 6 ^th April 2004 and running into the small hours of 7 ^th April 2004.

Some factual background:

Adebayo applicant:

3 In the case of this applicant, a Deportation Order was made on 6 ^th March 2004 and served on him on the 7 ^th March 2004. It appears that at the time that he was served at his home in Rathmines he was also arrested and detained at Cloverhill Prison. He lodged judicial review proceedings on the 15 ^th March 2004, challenging the validity of the Deportation Order, the return date for that application being the 21 ^st April 2004.

4 Following his arrest on the 7 ^th March 2004, this applicant challenged the legality of his arrest and detention in Habeas Corpus proceedings. That application came before the High Court on the 25 ^th March 2004 and was refused. The affidavit sworn to ground the present application states that "that decision is being appealed" and that it is intended to seek to adduce additional evidence which not available to the applicant at the hearing of the Habeas Corpus application, and then states as follows:

5 "That evidence will show that several other Nigerians in comparable circumstances were similarly treated by Garda officers and, when their arrests were challenged, those Gardai stated invariably that the circumstances had caused them to suspect that those individuals too intended to avoid removal from the State. I respectfully suggest that the uncanny consistency of the Garda evidence in this regard demonstrates that it was fabricated."

6 It would appear that by the 6 ^th April 2004, no appeal had been filed and served against the refusal of Habeas Corpus.

7 On the evening of the 6 ^th April 2004, the applicant's solicitor learned that it was likely that the applicant was likely to be deported that night and sent a letter by fax to the Repatriation Unit at Burgh Quay, informing them that Judicial Review proceedings had been filed and served with a return date of the 21 ^st April 2004, and stating "We trust therefore that no action will be taken in the interim to give effect to the challenged order and thereby deprive him of access to the courts." In fact he was deported on the night of the 6 ^th/morning of 7 ^th April 2004.

8 These judicial review proceedings included an application for relief by way of interlocutory injunction, but no interim injunction had been sought by the 6 ^th April 2004. No undertaking appears to have been sought from the Minister in the meantime.

9 This applicant has sworn an affidavit in Lagos, Nigeria in which he states that on the 6 ^th April 2004 while in Cloverhill Prison he was told to prepare for his journey "home", which at the time he interpreted as his home in Dublin. In a reception cell he met other detainees who told him he was being deported to Nigeria. He asked for his belongings, all of which were given to him with the exception of his mobile phone. A request for an opportunity to speak to his solicitor was denied, according to his affidavit. He states that he protested that he would not leave Cloverhill Prison until such time as he had spoken to his solicitor because of the existence of his judicial review proceedings. He was then handcuffed and placed in a van and he states that then he was driven "to a safe house in Dublin before we were eventually driven to the tarmac at the (sic) Dublin Airport to board a chartered flight to Nigeria." He goes on to state that his mobile phone was returned to him on arrival in Nigeria. He also states that he believes that he was deliberately refused access to his solicitor prior to his deportation.

Igwe applicant:

10 The facts in relation to this applicant are virtually on all fours with Mr Adebayo, save that he was served with a Deportation Order on the 6 ^th March 2004 and thereupon arrested and detained in Cloverhill Prison. He also challenged the legality of his detention, but this application was refused on the 22 ^nd March 2004. As in the case of Mr Adebayo the grounding affidavit of his solicitor states that the refusal of Habeas Corpus relief is being appealed and the passage which I have already quoted above is repeated in his case also. It would appear that by the 6 ^th April 2004, no appeal had been filed and served against the refusal of Habeas Corpus.

11 In this case also judicial review proceedings challenging the Deportation Order had been filed on the 16 ^th March 2004, and served, with a return date for the 21 ^st April 2004. As in the case of Mr Adebayo, interlocutory injunctive relief is included among the reliefs being sought, but no interim injunction was sought in the meantime, and no undertaking had been sought or obtained from the Minister in the meantime.

The Jacob applicants:

12 These applicants are brother and sisters to each other. It appears that their father and mother and daughter, Ronke Jacob arrived in the State and applied for asylum on 14 ^th August 1998. The parents did not include Ronke in their application - she was at that time a minor. The applications were refused, and an appeal was lodged against that refusal. Folashande and Oyeshola (brothers of Ronke) did not arrive here until the 28 ^th June 2001, although in time to give evidence at the hearing of their parents' appeal. These children did not themselves make a separation application for asylum.

13 Deportation Orders were made on the 5 ^th September 2003 in respect of these three applicants, who by this time are no longer minors. The making of these orders was notified to each by letter dated 20 ^th November 2003. Unlike the Igwe and Adebayo applicants, these three were not arrested upon being served with the Deportation Orders.

14 These applicants issued judicial review proceedings seeking to quash the Deportation Orders on the 15 ^th March 2004 (well outside the 14 day time limit for bringing such an application), and the return date, as in the case of the previous applicants, was the 21 ^stApril 2004. Among the reliefs sought is an interlocutory injunction, but again as in the case of the other applicants, no interim relief was sought prior to the 6 ^th April 2004. I understand that one of the bases for judicial review is the argument that since these applicants did not at any time...