C.A. v Governor of Cloverhill Prison
|Mr. Justice Gerard Hogan
|27 February 2017
| IECA 46
|27 February 2017
|Court of Appeal (Ireland)
|Neutral Citation Number:  IECA 46 Record No. 2017/42
IN THE MATTER OF AN APPLICATION PURSUANT
TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND
 IECA 46
Neutral Citation Number:  IECA 46
Record No. 2017/42
THE COURT OF APPEAL
Administrative & constitutional law – Detention – Pakistani national – Claims for refugee status and subsidiary protection refused – Detention under s 5 of Immigration Act 1999 – European Communities (Free Movement of Persons) Regulations 2015
Facts: The applicant, a Pakistani national, had been refused refugee status and subsidiary protection along with his family. He had been detained pursuant to s 5 of the Immigration Act 1999 with a view to deportation. An application to the High Court seeking his release had been refused (see  IEHC 48), and the matter now came on appeal to the Court of Appeal.
Held, that the applicant’s claim that he was a permitted family member of an EU citizen did not serve to render his detention unlawful under the European Communities (Free Movement of Persons) Regulations 2015. If the 2015 provisions were intended to have such an effect, express and precise language would have been drafted to that end.
This is an appeal taken by the applicant, C.A., from the decision of the High Court (Keane J.) delivered on 7th February 2017 refusing to direct his release from custody pursuant to Article 40.4.2: see . I will presently set out the nature of the detention and the fundamental ground upon which the legality of that detention is challenged. It is first necessary, however, to sketch out the background facts to this application.
The applicant is a Pakistani national who was born on 1st January 1961. A deportation order has already been made by the Minister for Justice and Equality in respect of Mr. A. as far back as 21st September 2011. The validity of that deportation order has not been challenged at any stage by the applicant.
The applicant first applied for refugee status within the State on the 17th February 2010. He travelled with his wife and five children. They arrived in the State from Belfast some time that month, having flown from Pakistan to Manchester on the previous 8th January 2010. The Office of the Refugee Applications Commissioner (‘ORAC’) recommended the refusal of the applicant's claim for refugee status in May 2010. The applicant then appealed to the Refugee Appeals Tribunal (‘the Tribunal’). In July of that year, the Tribunal recommended that the ORAC decision be affirmed.
On the 22nd September 2010 the applicant applied for leave to remain in the State, as well as an application for subsidiary protection. The application for subsidiary protection was refused in August 2011. The applicant was then refused leave to remain and a deportation order was signed on the 21st September 2011. The applicant was notified of that fact by letter dated three days later. Deportation orders were made in respect of the applicant's wife and five children on the same date. Despite the making of these orders the applicant and his family have nonetheless remained illegally in the State during this intervening period.
The applicant was arrested on 9th January 2017 by members of the Garda National Immigration Bureau pursuant to the powers of the arrest conferred by s. 5 of the Immigration Act 1999 (‘the 1999 Act’) (as amended) and he was then detained in Cloverhill Prison. The basis for the arrest was that the arresting officer suspected that the applicant had failed to comply with the terms of a deportation order or the requirements of a notice addressed to him under s. 3(3)(b)(ii) of the 1999 Act. In effect, therefore, the applicant was arrested because he was regarded as an evader who had failed to comply with the terms of the earlier deportation order and he was directed to be detained pending the making of arrangements for him to be removed from the State. The validity of that arrest is not under challenge in this application.
The only issue which arises in this application is whether there is a settled intention on the part of the authorities to deport the applicant within the 8 week time limit prescribed by s. 5(6)(b) of the 1999 Act (as amended). It is perhaps worth emphasising that the arrest and detention of an applicant such as Mr. A. pending deportation represents a form of preventative civil detention. Mr. A. has not, of course, been imprisoned in respect of any crime and a measure of this kind is one which is and must always remain an exceptional one in any free and democratic society. In re Article 26 and the Illegal Immigrants (Trafficking) Bill the Supreme Court held that detention for the purposes of securing the orderly deportation of non-nationals against whom deportation orders had been made and which was accompanied with appropriate safeguards (such as the eight week time limit) was not unconstitutional in these circumstances for these very reasons.
As I explained in a judgment delivered by me as a judge of the High Court in , :
‘When Article 40.4.1 provides that no person shall be detained ‘save in accordance with law’, this means that the law in question must one which respects ‘the fundamental norms of the legal order posited by the Constitution: see per Henchy J. While preventative detention is not excluded on an ex ante basis, respect for these fundamental norms means that the necessity for any such detention must be compelling: this seems necessarily implicit in the comments of Keane C.J. in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 .
In that case, of course, the constitutionality of the detention provisions contained in s. 5 of the Immigration Act 1999 was upheld, precisely because detention provisions of this kind were deemed necessary to enable effect to be given to deportation orders. Those provisions apply only to persons who have already been refused asylum and they, of course, are persons who by definition have no right to remain in the State. Section 5(6) contains, moreover, a maximum detention period of eight weeks, albeit (unlike the present case) there is no direct judicial supervision of that detention. It was against that particular background that the constitutionality of the Bill was upheld, precisely because the necessity for a measure of this kind was objectively necessary to uphold a fundamental State interest, namely, the effective and orderly operation of the deportation system.
The fact that the applicant may- presently- have no legal right to be in the State does not in itself mean that the State can detain him pending the outcome of an application for asylum. Had the 2000 Bill contained a measure that would have potentially sanctioned the preventative detention of asylum seekers merely (and I again emphasise this word) because they were otherwise in breach of statutory regulation or administrative rules and practices governing the asylum and immigration system, one must greatly doubt whether it would have survived constitutional scrutiny by the Supreme Court.
If it is said that there is a compelling State interest in ensuring that persons who happen to have committed breaches of these immigration rules do not remain at liberty and must therefore be detained on a preventative basis pending the outcome of their applications for asylum simply by reason of this fact, then I fear that preventative detention would become routine and regular. I refuse to believe that such a state of affairs could be constitutionally sanctioned in a State which is committed to the rule of law and where the words of the Preamble commit the State to ensuring that the “dignity and freedom of the individual may be assured.
These considerations must inform both the scope of the sub-section, as well as its judicial application.’
Applying these principles to the circumstances of the present case, it is clear that even if the underlying arrest was lawful, the continuing detention would become unlawful if there was no immediate prospect of deporting the applicant within the eight week period. This point was expressly stressed by the Supreme Court in the Illegal Immigrants Bill, with Keane C.J. observing ( ):
‘There is no question of any new or draconian power of detention being introduced by the Bill. The detention, if it is to remain lawful, must be confined to statutory purposes in accordance with the principles enunciated by Flood J. in , High Court, 19th February 1993…’
In Flood J. held that the detention of the applicant pending his deportation to Libya had become unlawful by reason of the failure of the Minister to make appropriate and timely arrangements to ensure that this had been achieved within a reasonable period. It is, accordingly, clear from the existing case-law that detention pursuant to s. 5 becomes unlawful if there is no prospect that the deportation cannot be realistically achieved during this statutory period.
The leading post- authority for this proposition is the decision of Finlay Geoghegan J. in . In that case the applicant's application was under consideration by the Minister following the birth of her (Irish citizen) son some three weeks earlier and it had been expressly conceded in that case that the applicant could not be deported until her application for...
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