Amjad Parvaiz v The Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IEHC 772
• Docket Number: [2016] No.1053 S.S.
• Court: High Court
• Date: 21 December 2016

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

AMJAD PARVAIZ

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

AND

THE GARDA NATIONAL IMMIGRATION BUREAU

RESPONDENTS

[2016] IEHC 772

[2016] No.1053 S.S.

THE HIGH COURT

Immigration – Arrest – Detention – Applicant seeking his unconditional release – Whether the reasons given for arresting and detaining the applicant were reasonably justified

Facts: An enquiry pursuant to Article 40.4 of the Constitution was ordered in respect of the applicant, Mr Parvaiz, who, in connection with an immigration matter, was initially arrested and then detained in a Garda station and thereafter detained in Cloverhill Prison. Pending the delivery of this judgment the applicant was released on bail on condition that he appear personally in court at hearings of this matter. The arresting Garda said that he had reasonable cause to suspect that the applicant failed to leave the State within a time specified in the deportation order. The second reason given for the arrest and detention by the Garda was the belief of the arresting Garda that the applicant “intends to avoid removal from the State.”

Held by the High Court (Mac Eochaidh J) that neither of the reasons given for arresting and detaining the applicant were reasonably justified (by reference to an objective standard).

Mac Eochaidh J held that the applicant was unlawfully arrested and detained and, given that he was on bail, Mac Eochaidh J ordered his unconditional release.

Release ordered.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the day 21 ^st day of December, 2016.

1 An enquiry pursuant to Article 40.4 of the Constitution was ordered in respect of the applicant who, in connection with an immigration matter, was initially arrested and then detained in a Garda station and thereafter detained in Cloverhill Prison. Pending the delivery of this judgment the applicant was released on bail on condition that he appear personally in court at hearings of this matter.

2 The Governor of the prison has certified that he holds the applicant in custody pursuant to a ‘Detention Order’ and he has exhibited a document entitled ‘Notification of Arrest and Detention’ addressed to the Governor of Cloverhill Prison and signed by Detective Garda Niall O Meara. In that document the Garda states :-

‘… [I] arrested [the applicant] under Section 5 of the Immigration….. I now direct that pending the making of arrangements for his removal from the state that the [applicant] be detained in Cloverhill Prison, a prescribed place of detention for the purposes of Section 5 of the Immigration Act 1999.

The basis for [the] arrest and detention is that I with reasonable cause to suspect that the said person against whom a deportation is in force:

(a) has failed to leave the State within the period specified in the order

(b) has failed to comply with any other provision of the order or with a requirement in a notice under s. 3(3) (b) (ii),

(c) intends to leave the State and enter another State without lawful authority,

(d) has destroyed his or her identity documents or is in possession of forged identities documents, or

(e) intends to avoid removal from the State.’

3 The Garda ticked (a) and (e). Two features of this document are notable. First, by ticking a box next to the text at (a) and at (e) the Garda indicated the basis for arrest and detention. I attach significance to the fact that the Garda did not place a mark beside the text at (b). This means that the applicant was not detained for failing to comply with a requirement of a notice issued under s. 3(3) (b) (ii) of the Immigration Act. Second, the powers being exercised are granted by s.5 of the Immigration Act and the Garda personally directed the detention of the applicant. The Garda has the power to detain a person, such as the applicant, who is not suspected of, charged with nor convicted of any criminal offence, for 8 weeks (see s. 5(8) (a)). This broad power of civil detention without judicial oversight must be exercised strictly in accordance with the statute.

4 Detective Garda O”Meara gave an account in an affidavit of his interaction with the applicant as follows:-

‘… ‘… on 27 ^th September, 2016 I was on duty at the offices of the GNIB on Burgh Quay. I say that the applicant was due to present at Burgh Quay on that date. Having made inquiries of the Arrangements Unit in the GNIB, I say that I that I was aware that there was a valid deportation order in respect of him and that he had been obliged to leave the State by the 8 ^th January, 2016, as directed in a letter from the Minister for Justice on the 8 ^th December, 2015, a copy of which I beg to refer to, when produced …

I say that the applicant duly presented at Burgh Quay on that date. I say that I introduced myself to him and explained that there was a valid deportation order in respect of him and that he had not left the State by the date specified in the letter from the Minister for Justice of the 8 ^th December, 2015. I say that he indicated to me that he did not wish to leave the State. I say that I accordingly arrested him at approximately 12:20 that afternoon pursuant to s. 5(1) of the Immigration Act 1999, as amended.’

5 Mr. Alan King, Assistant Principal Officer at the Department of Justice (INIS) swore an affidavit dated 30 ^th September, 2016, in reply to the grounding affidavits of the applicant's solicitor in which he made the following points. The applicant has been in the State for about thirteen years. Between 2003 and 2013 he had a work permit for about two years and five months. For the rest of the time his presence in the State was unlawful. In 2013 he was detained pending deportation but made an application for asylum. The deportation order was revoked in order to allow the claim for asylum to be made. This claim was refused. The subsidiary protection application was withdrawn. The deportation order was made on the 1 ^st December, 2015. It was sought to be implemented on the 27 ^th September, 2016, which prompted these present proceedings. The deportation order has never been challenged by the applicant. An application for revocation pursuant to s. 3(11) of the Immigration Act 1999 was made; this was refused. Mr King says at paragraph 9:-

‘… A Deportation Order was signed on December 1 ^st 2015, ordering the Applicant to leave the State by January 8 ^th 2016….’

The Deportation order is exhibited. It does not mention a departure date and so it is not immediately apparent how Mr King can say that it ordered the applicant to leave the State by a certain date. The deportation order says that the applicant is to leave the State:-

‘… within the period ending on the date specified in the notice served on or given to you under subsection 3(b) (ii) of the said section 3, pursuant to subsection 9(a) of the said section 3 and to remain thereafter out of the State.’ The notice under subsection 3(b) (ii) is not exhibited by Mr King.

6 The deportation order does not express on its face the date by which the applicant has to leave the State.

7 The applicant's solicitor swore an affidavit on the 28 ^th of September, 2016, and exhibited a letter dated the 8th December, 2015 The letter is as follows:-

‘Mr. Amjad Parvaiz

8A Summerhill Village

Sligo

Co. Sligo

Registered Post

Person ID: 244922-09

Application ID: 244922-09

Legacy Ref:

Dear Mr Amjad Parvaiz

I am directed by the Minister for Justice and Equality to refer to your current position in the State and to inform you that the Minister has decided to make a deportation order in respect of you under section 3 of the Immigration Act, 1999 (as amended). A copy of the order and a copy of the Minister's considerations pursuant to section 3 of the Immigration Act, 1999 (as amended) and section 5 of the Refugee Act, 1996 (as amended) are enclosed with this letter.

In reaching this decision the Minister has satisfied herself that the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 (as amended) are complied with in your case. The reasons for the Minister's decision are that you are a person whose application for a declaration as a refugee has been refused. Having had regard to the factors set out in section 3(6) of the Immigration Act, 1999 (as amended), including the representations received on your behalf, the Minister is satisfied that the interest of the public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State.

The deportation order requires you to leave the State and to remain outside the State thereafter.

You are obliged to leave the State by 08 January 2016. Please advise this office of the travel arrangements that you make to comply with the deportation order.

If you do not leave the State by 08 January 2016 you are liable to be deported and the following requirements under the provisions of section 3(9)(a)(i) of the Immigration Act, 1999 (as amended) must be observed:

- You are required to present yourself to the member in charge, Booth No 1, Garda National Immigration Bureau, 13\14 Burgh Quay, Dublin 2 on Tuesday, 12 January 2016 at 2 pm to make arrangements for your removal from the State.

- You are required to produce at that appointment any travel documents, passports, travel tickets or other documentation in your possession which may facilitate your removal from the State.

- You are required to co-operate in any way necessary to enable a member of An Garda Siochana or Immigration Officer to obtain a travel document, passport, travel ticket or other document required for the purpose of such removal.

- You are required to reside at the above address pending your removal from the State.

Please also note that failure to leave the State by 08 January 2016 is a failure to comply...