CA v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 03 February 2017
• Neutral Citation: [2017] IEHC 48
• Docket Number: [2017 No. 44SS]
• Court: High Court
• Date: 03 February 2017

[2017] IEHC 48

THE HIGH COURT

Keane J.

[2017 No. 44SS]

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40 OF THE CONSTITUTION

BETWEEN

C.A.

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Asylum, Immigration & Nationality – Art. 40.4.2 of the Constitution Unlawful detention – Regulation 5(2) of the European Communities (Free Movement of Persons) Regulations 2015 – S. 5 (8)(a) of the Immigration Act 1999.

Facts: The applicant sought an order for his release from the prison alleging that his detention was unlawful. The applicant submitted that he should be treated as a permitted family member of a Union citizen under reg. 5(2) of the European Communities (Free Movement of Persons) Regulations 2015. The respondent claimed that the applicant was detained pursuant to s. 5 (8)(a) of the Immigration Act 1999 on the basis of a valid deportation order made against the applicant. The respondent contended that the Union citizen with whom the applicant had claimed to have durable relationship was the sister of the applicant's wife and there was no evidence of the applicant's co-habitation with his wife's sister.

Mr. Justice David Keane held that the detention of the applicant was lawful as evident from the valid deportation order made against him. The Court held that there was nothing in the 2015 Regulations entitling a person to reside in the State who had made an application for residency to the effect that he should be treated as a permitted family member of a Union citizen, pending the decision on that application. The Court did not find any evidential deficit in relation to the existence of continuing intention to deport the applicant that could raise concerns over the legality of his arrest.

JUDGEMENT of Mr Justice David Keane delivered on the 3rd day of February 2017

Introduction

1 Pursuant to Article 40.4.2° of the Constitution of Ireland, the applicant seeks an order of release from detention. The respondent opposes that application on the basis that the applicant is being held in accordance with law.

Procedural Background

2 On Friday, the 13th January 2017, through his legal representatives, the applicant made a complaint to the High Court that he was being unlawfully detained. Inquiring forthwith, the Court ordered the production of the applicant at 2 p.m. on that day and the certification in writing of the grounds of his detention. That was duly done, and the application was then adjourned to the following Tuesday, the 17th January 2017, to afford the respondent an opportunity to justify the detention.

3 On Tuesday, the 17th January 2017, the applicant was admitted to bail on terms agreed between the parties and approved by the Court, and the application was further adjourned to the 31st January 2017, for hearing. The Court heard the application on that date. The applicant remains on bail conditional upon, amongst other things, attending Court on each date when the proceedings are before it.

The detention

4 Mr Joe Hernan, assistant governor of Cloverhill Prison, has certified that the applicant is in custody pursuant to a detention order (or warrant of detention) dated the 9th January 2017. A copy of that warrant of detention is appended to the certificate. It is addressed to the governor of that prison and recites, in material part:

“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, on Monday, the 9th January 2017, I arrested [C.A.] and I direct that pending the making of arrangements for his removal from the State that the said [C.A.] be detained in Cloverhill Prison, a prescribed place of detention for the purpose of Section 5(3) of the Immigration Act, 1999 (No. 22 of 1999) as amended.

The basis for such arrest and detention is that I with reasonable cause, suspect that the said person against whom a deportation order is in force…has failed to comply with [a provision of the order other than that he leave the State within the time specified in the order] or with a requirement in a notice under Section 3(3)(b)(ii).

In accordance with Section 5(8) of the Immigration Act 1999, as amended, [C.A.] may only be detained until such time (being as soon as practicable) as he is removed from the State but in any event he shall not be detained under this Section for a period or periods exceeding 8 weeks (excluding any period referred to in Section 5(8)(b) of the said Act) in aggregate.”

5 The detention order bears the stamp of the Garda National Immigration Bureau (“GNIB”), 13/14 Burgh Quay, Dublin 2, with a date of the 9th January 2017. The order is endorsed as executed by lodging the applicant in Cloverhill Prison on the 9th January 2017 at 10.55 a.m.

The complaint that led to the inquiry

6 The complaint that led to the present inquiry was made grounded on a short affidavit sworn on the 13th January 2013 by Lauren Martin, the solicitor acting on behalf of the applicant.

7 That affidavit exhibits the warrant of detention already described. Ms Martin then avers that, on the 23rd October 2016, the applicant applied, under Regulation 5(2) of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), for a decision that he be treated as a permitted family member of a Union citizen. Ms Martin exhibits a letter dated the 25th November 2016 from the Irish Naturalisation and Immigration Service (“INIS”) to the applicant, acknowledging receipt of that application, though not a copy of the application that was made. Ms Martin provides no further information concerning the basis for that application. The applicant's position, as considered further below, is that the fact of that application is sufficient to render his deportation and, hence, his detention for that purpose unlawful.

8 While strictly an argument of law, rather than an assertion of fact, Ms Martin goes on to aver that, “in accordance with Regulation 7(3) of the [2015] Regulations, the applicant is entitled to remain in the State pending the determination of his application under the Regulations”, with the consequence that the extant deportation order against him cannot be enforced and, thus, his detention, which is solely to facilitate his deportation, is unlawful. Indeed, that was the basis upon which the application for an inquiry was moved before the Court on the morning of the 13th January 2017

9 The last-mentioned averment creates considerable uncertainty about both the particular Regulations and the specific provision of those Regulations that the applicant is seeking to rely upon. Regulation 7(6) of the 2015 Regulations confers permission to remain in the State on a permitted family member who has applied for a residence card, pending a decision on that application. Regulation 32 of the 2015 Regulations revokes the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (“the 2006 Regulations”), subject to certain transitional provisions of no relevance here. The separate initiating letters that the applicant's solicitors wrote to both the INIS and the respondent refer confusingly to the applicant's asserted entitlements under “Regulation 7 of the European Communities [Free Movement of Persons] Regulations 2006 to 2015.” Regulation 7(3) of the 2006 Regulations operated to give permission to remain in the State to a permitted family member who had applied for a residence card under those Regulations, pending a decision on that application.

10 By operation of Regulation 5(1)(b) of the 2015 Regulations, that paragraph applies to, amongst others, a person who, “is the partner with whom a Union citizen has a durable relationship, duly attested.” Under Regulation 5(2) of the 2015 Regulations, such a person may apply to the Minister for Justice and Equality (“the Minister”) for a decision that he or she be treated as a permitted family member for the purposes of the Regulations. Regulation 3(6) of the 2015 Regulations provides that, for the purposes of those Regulations, a person is a permitted family member of a particular Union citizen where, as one of the necessary criteria, “the Minister has, in accordance with Regulation 5, decided that the person should be treated as a permitted family member of the Union citizen….” Under Regulation 6(1) of the 2015 Regulations, a person within one of several defined categories (which categories include that of permitted family member) may reside in the State for up to 3 months, subject to certain specified conditions.

11 I can find nothing in Regulation 7, or in any other regulation of, the 2015 Regulations that confers any permission to reside in the State on a person who has applied, under Regulation 5(2) of those Regulations for a decision that he be treated as a permitted family member of a Union citizen, pending the making of that decision.

The evidence

12 The following undisputed facts emerge from the affidavits subsequently exchanged between the parties.

13 The applicant applied for refugee status within the State on the 17th February 2010. In doing so, he made the following claims. He is from Pakistan and is a national or citizen of that country. His date of birth is the 1st January 1961. 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, and having spent the intervening month in that city. The person who arranged their travel ran away with the applicant's passport.

14 The Office of the Refugee Applications Commissioner (“ORAC”) recommended the refusal of the applicant's claim for refugee status in May 2010. The applicant appealed to the Refugee Appeals Tribunal (“the Tribunal”). In July of that year, the Tribunal recommended that the ORAC decision be...