B.F.O. v Governor of Dóchas Centre

• Jurisdiction: Ireland
• Judgment Date: 08 May 2003
• Date: 08 May 2003
• Docket Number: [2003 No. 265
• Court: Supreme Court

High Court

[2003 No. 265 S.S.]

[2003 No. 103 J.R.]

B.F.O. v. Governor of Dóchas Centre

B.F.O.

Applicant

and

The Governor of Dóchas Centre

Respondent

B.F.O. v. Governor of Dóchas Centre

B.F.O., D.O. (A minor suing by his mother and next friend B.F.O.) and T.O. (A minor suing by her mother and next friend)

Applicants

and

The Minister for Justice, Equality and Law Reform, The Commissioner of an Garda Síochána, The Governor of Mountjoy Prison and The Attorney General

Respondents

Cases mentioned in this report:-

Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1.

O'Brien v. Bord na Móna [1983] I.R. 255; [1983] I.L.R.M. 314.

Constitution - Personal rights - Liberty - Detention - Habeas corpus - Legality of detention - Purpose of detention - Deportation - Whether proximate or concluded intention to deport precondition to valid detention - Immigration Act 1999 (Deportation) Regulations 2002 (S.I. No. 103) - Refugee Act 1996 (No. 17) - Immigration Act 1999 (No. 22), ss. 3 and 5(1) - Illegal Immigrants (Trafficking) Act 2000 (No. 29) - Constitution of Ireland 1937, Article 40.4.

Aliens - Deportation - Leave to remain - Irish born child - Refusal of application for residency - Exercise of sovereign power of State - Principles applicable to exercise of power - Fair procedures - Whether fair and proper consideration given to rights of others - Whether decision making procedure capable of being objectively perceived to be fair - Effect of material change in context in which decision to be made during course of decision making procedure - Whether exercise of judicial power - Whether bias relevant - Illegal Immigrants (Trafficking) Act 2000 (No. 29), s. 5.

Habeas corpus and judicial review.

The facts are summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J., infra.

A complaint was made to the High Court, ex parte, on the 5th February, 2003, that the detention of the first and second applicant pursuant to a detention order dated the 27th January, 2003, was illegal. The High Court ordered the production of the applicant, who was then released on bail pending the full hearing of the inquiry pursuant to Article 40 of the Constitution.

By notice of motion dated the 12th February, 2003, the applicant sought leave to issue judicial review proceedings pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 seeking, inter alia, to challenge the Minister's decision refusing her application for residency on the basis of her Irish born child.

The proceedings were heard by the High Court (Finlay Geoghegan J.) on the 26th and 29th February and the 4th March, 2003.

The first and second applicants were detained in Mountjoy prison pursuant to a detention order dated the 27th January, 2003. A complaint was made to the High Court on the 5th February, 2003, that the detention was illegal. A deportation order had issued against the first applicant on the 21st August, 2002. The notification was sent to the applicant's address on file on the 6th September, 2002, however, in the intervening period she had changed her address without notifying the authorities. Subsequently, she applied for residency on the basis that she was the mother of an Irish born child, namely, the second applicant, born on the 15th December, 2002. The application for residency was acknowledged by the Immigration Division in correspondence dated the 3rd and 15th January, 2003. On the 27th January, 2003, the first applicant went to Waterford garda station to furnish her current address where she was arrested for contravening the provisions of the Immigration Act 1999. The first applicant asserted that prior to her arrest she produced the letter acknowledging her application for residency.

On the 6th February, 2003, the Minister refused the first applicant's application for residency. The submission, which recommended that the Minister reject the application, referred, inter alia, to the fact that the successful defence of the habeas corpus proceedings might rely, to an extent, on the Minister affirming or revoking the original deportation order in light of the new information concerning the applicant's Irish born child.

The applicants applied for leave to issue judicial review proceedings pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 seeking, inter alia, to challenge the Minister's decision to refuse the application for residency.

Held by the High Court (Finlay Geoghegan J.), in declaring that the detention of the applicant was illegal and ordering her release and in granting an order of certiorari quashing the decision of the Minister of the 6th February, 2003, 1, that the power of detention under s. 5(1) of the Act of 1999 was exercisable only for the purpose of ensuring deportation and a precondition to the valid exercise of the power required the existence of a definite or concluded intention to deport the applicant concerned. In the instant case, the detention was illegal and could not be cured by a subsequent valid decision of the Minister.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 and The Illegal Immigrants (Trafficking) Bill, 1999[2000] 2 I.R. 360 applied.

2. That the Minister, in the exercise of his discretion, was exercising the sovereign power of the State; the decision was not a judicial or quasi-judicial decision. Therefore, the principles in relation to objective bias were inapplicable. In the instant case, although the Minister was not adjudicating on constitutional rights, the decision in respect of the first and third applicants had to be made in accordance with the principles of constitutional justice and the constitutional rights of the second applicant had to be considered.

Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408; East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General[1970] I.R. 317; A.O. & D.L. v. Minister for Justice[2003] 1 I.R. 1; O'Brien v. Bord na Móna[1983] I.R. 255 and The Illegal Immigrants (Trafficking) Bill, 1999[2000] 2 I.R. 360 applied.

3. That the Minister was required to reach a decision in a fair and proper manner in accordance with the principles of constitutional justice which required that due and proper consideration be given to the rights, including the constitutional rights, of others. Thus, the complete decision making procedure, in which a fair and proper consideration was given to the rights of others, must be capable of being objectively perceived to be fair. In the instant case, the procedure followed by the authorities which culminated in the decision of the Minister was in breach of the requirements of fair procedures.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; A.O. & D.L. v. Minister for Justice[2003] 1 I.R. 1 and O'Brien v. Bord na Móna[1983] I.R. 255 applied.

4. That, where a material change in the context in which a decision was being made occurred during the course of the procedure being followed, the applicant had to be given a reasonable opportunity to consider the new context and to make relevant submissions. A material change in context had occurred in this case.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; A.O. & D.L. v. Minister for Justice[2003] 1 I.R. 1 and O'Brien v. Bord na Móna[1983] I.R. 255 applied.

Cur. adv. vult.

Finlay Geoghegan J. 8th May, 2003

By an affidavit sworn on the 5th February, 2003, S. Glazier, solicitor, made a complaint pursuant to Article 40.4 of the Constitution that the applicant was being illegally detained in the Dóchas Centre, Mountjoy Prison. Upon the ex parte application of counsel for the applicant, grounded upon the said affidavit, I made an order pursuant to Article 40.4.2 of the Constitution that the respondent produce to the court at 2 p.m. on the 6th February, 2003, the applicant and certify in writing the grounds of her detention.

The certificate was furnished by Mr. C. Barclay, deputy governor of the Dóchas Centre, on behalf of the respondent, to the effect that the applicant was being held pursuant to a detention order dated the 27th January, 2003, addressed to the Governor of Mountjoy Women's Prison, annexed to the certificate, which was in the following terms:-

"In exercise of the powers conferred on me by the Immigration Act 1999 (Deportation) Regulations 2002 (S.I. No. 103 of 2002) made in exercise of the powers conferred by s. 7 of the Immigration Act 1999 (No. 22 of 1999), I direct that pending the making of arrangements for his/her removal from the State, that:-

B.F.O. and baby in arms

be detained in Mountjoy Women's Prison a prescribed place for the purpose of s. 5(1) of the Immigration Act 1999 (No. 22 of 1999)

Signed: P. Duggan

Authorised Person"

The detention order bore the stamp of the Garda Síochána Immigration and Registration Office, Ballybricken, Waterford City with a date of the 27th January, 2003. The detention order was endorsed as executed by lodging the first applicant at Mountjoy Women's Prison on the 27th January, 2003, at 5.45 pm.

On the 6th February, 2003, at 2 p.m., counsel for the respondents informed the court that earlier on that day a decision had been made by the Minister for Justice, Equality and Law Reform ("the Minister") refusing an application for residency made in January, 2003, by the applicant upon the basis that she was then the mother of an Irish born son namely, the second applicant who had been born in the State on the 15th December, 2002. The matter was adjourned to the 7th February, 2003, to permit the respondents file affidavits.

On the 7th February, 2003, the respondents filed in court an affidavit of Garda...