Chaoxia Ni v Garda Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 27 March 2013
• Neutral Citation: [2013] IEHC 134
• Court: High Court
• Date: 27 March 2013

[2013] IEHC 134

THE HIGH COURT

[No. 405 SS/2013]

Ni v Garda Cmsr

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

CHAOXIA NI

APPLICANT

AND

GARDA COMMISSIONER

RESPONDENT

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 2004 S4(3)(K)

IMMIGRATION ACT 2003 S1(1)

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(1)

IMMIGRATION ACT 2004 S4(2)

IMMIGRATION ACT 2004 S4(3)

IMMIGRATION ACT 2004 S4(3)(B)

IMMIGRATION ACT 2004 S4(3)(E)

CONSTITUTION ART 40

LYNCH, STATE v COONEY & AG 1982 IR 337 1982 ILRM 190 1983 ILRM 89 1982/12/2278 1982/6/1125

KIBERD & CAREY v HAMILTON 1992 2 IR 257 1992 ILRM 574 1992/3/654

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

IMMIGRATION ACT 2003 S5(2)(A)

IMMIGRATION ACT 2003 (REMOVAL PLACES OF DETENTION) REGS 2003 SI 444/2003 ART 2

OLADAPO v GOVERNOR OF CLOVERHILL PRISON 2009 2 ILRM 166 2009/43/10766 2009 IESC 42

IMMIGRATION ACT 2004 S14

KADRI v GOVERNOR OF WHEATFIELD PRISON 2012 2 ILRM 392 2012/20/5671 2012 IESC 27

IMMIGRATION ACT 2004 S5(6)

NESTOR v MURPHY 1979 IR 326

INTERPRETATION ACT 2005 S5(1)

CONSTITUTIONAL LAW

Legality of detention

Chinese national - Belief of immigration officer that applicant in breach of terms of visa - Refusal of leave to land in State - Arrest and detention in airport terminal - Statutory interpretation - "Prescribed place" - Whether refusal of leave to land lawful - Whether subsequent arrest and detention lawful - Kadri v Governor of Wheatfield Prison [2012] IESC 27, [2012] 2 ILRM 392 applied - Immigration Act 2003 (No 26), s 5 - Immigration Act 2004 (No 1), s 4 - Release ordered (2013/405SS - Hogan J - 27/3/2013) [2013] IEHC 134

Ni v Garda Commissioner

Facts: The applicant was a Chinese national who arrived in Dublin, Ireland on the 28th February 2013. Upon arrival, he was refused permission to land pursuant to s. 4(3)(k) of the Immigration Act 2004 before being subsequently arrested and detained under s. 5(2)(a) of the Immigration Act 2003. The immigration officer dealing with the applicant initially found it suspicious that despite the fact the applicant had a multiple entry visa that had allowed him to study in Ireland since 2006, his ability to understand and speak English was extremely poor. Through further enquiries, the immigration officer was able to establish that whilst the applicant was registered in an educational institution in Ireland, he was also working in a meat factory for between 30 and 40 hours a week, a breach of the terms of the visa.

The applicant sought to challenge the legality of the refusal of permission to land as well as his detention pursuant to Article 40.4.2 of the Constitution. It was his claim that in order for the immigration officer to be able to refuse permission to land under s. 4(3)(k) of the Immigration Act 2004, there had to be reasonable suspicion that the applicant was arriving for reasons other than those expressed. The applicant denied his reasons for arrival were materially different from that that was laid out in the terms of his visa, pointing to his attendance record at the educational institution.

In terms of the detention of the applicant, it was submitted that s. 5(2)(a) of the 2003 Act only allowed the detention of non-nationals in prescribed places, which was defined in the act as any place listed in the schedule to the legislation or any police station. The applicant had been initially held in holding cells in the airport from 2.45pm to 9.00pm before being removed to Clontarf Police Station. The applicant averred that because these holding cells were not listed in the schedule, and because they did not fulfil the minimum standards required of a police station, his detention during that time was illegal. If this was proven, the applicant”s detention at Clontarf Police Station would therefore be also illegal due to it being a continuation of his initial unlawful detention.

Held by Hogan J that the evidence before the court clearly showed that the applicant had been working long hours in a meat factory on almost every weekday. In those circumstances, it was difficult to see how his attendance record could be accurate and certainly raised suspicions that he was in the country for the primary purpose of work instead of study. The terms of his visa had certainly been breached at the very least. The immigration officer was therefore justified to have concluded a reasonable suspicion that the applicant had arrived for reasons other than those expressed had arisen. The refusal of leave to land pursuant to s. 4(3)(k) of the 2004 Act was adjudged to have been lawful.

In terms of the applicant”s detention, it was held that the applicant”s initial detention was illegal. It was determined that legislation that gave powers to restrict personal liberty required a strict interpretation. Applying this to s. 5(2)(a) of the Immigration Act 2003, it was clear that the airport facilities were not prescribed places for the purpose of detention. By continuation of the original unlawful detention, the subsequent detention at Clontarf Police Station was also determined to be unlawful.

Applicant”s release from detention directed under Article 40.4.2 of the Irish Constitution

1 1. In these proceedings brought under Article 40.4.2 of the Constitution, the applicant, Mr. Ni, a Chinese national, seeks an inquiry into the legality of his detention. Mr. Ni originally arrived at Dublin airport on a flight from Paris around midday on 28 ^th February 2013, having originally travelled from Shanghai. He was, however, refused leave to land by Mr. Gerry Tucker, an immigration officer, in circumstances I will presently describe.

2 2 In these proceedings two issues arise. First, was Mr. Ni. lawfully refused leave to land in the State? Second, was his subsequent arrest and detention lawful?

3 3. As Mr. Ni presented on arrival at the immigration desk on the day in question, Mr. Tucker engaged him in conversation. It was clear to Mr. Tucker that Mr. Ni failed to understand his questions. It is, however, important to state that Mr. Ni was in possession of an Irish multiple entry visa which had been issued on 6 ^th July, 2012, and was due to expire on 8 ^th March, 2013. This visa enabled Mr. Ni to attend here for the purposes of study. It is also common case that the student holders of such visas are allowed to work up to 20 hours per week during term time, and up to 40 per week outside of term time.

4 4. Mr. Tucker found the fact that Mr. Ni was unable to comprehend his questions somewhat strange given that he had been registered as having arrived in the State in 2006, and that he had been a student here for more than six years. Mr. Ni could not even identify the name of the college he was attending. Mr. Tucker made a number of calls to various language schools in Dublin but Mr. Ni ultimately then produced a business card for a particular language institution. Mr. Tucker contacted that institution and verified that the applicant was, indeed, registered as a student with that college. While Mr. Tucker gave evidence (which I accept) that Mr. Ni told him he was studying English, it appears that Mr. Ni was actually registered for an A level business studies course.

5 5. Following further queries during the course of the day, a senior official from the college in question telephoned Mr. Tucker and confirmed that Mr. Ni was in fact registered in the college and that his attendance record was approximately 70%. (It appears that an attendance rate of at least 70% is expected of such foreign students by the immigration authorities). While Mr. Tucker queried the applicant's poor grasp of English - especially in view of the fact that he had apparently been studying the subject or, at least, a business subject in English for at least the last six years - it cannot be said that Mr. Tucker received a completely satisfactory response to that inquiry.

6 6. At that point Mr. Tucker went to meet the applicant's brother in law, Mr. Xie, in the arrivals hall. Mr. Xie was unaware of the applicant's course of studies, but he did inform Mr. Tucker that Mr. Ni was working in a meat factory. Upon receipt of this information Mr. Tucker spoke with the owner of the meat factory and he was informed that the applicant was working some 30 to 40 hours per week.

7 7. At that point Mr. Tucker was satisfied that the applicant was in breach of the terms of his original visa and was not honouring its conditions regarding the working hours. This was conveyed to Mr. Ni through an interpreter and he did not dispute this.

8 8. Having consulted with his colleagues, Mr. Tucker then refused Mr. Ni leave to land pursuant to s. 4(3)(k) of the Immigration Act 2004 ("the 2004 Act"). While Mr. Ni was in possession of a valid Irish visa this, in itself, did not give him an automatic right to be in the State or otherwise to dispense with the leave to land formalities. The term "Irish visa" is defined by s. 1(1) of the Immigration Act 2003 ("the 2003 Act") as meaning:-

"An endorsement made on a passport or travel document other than an Irish passport or Irish travel document for the purpose of indicating that the holder thereof is authorised to land in the State subject to any other conditions of landing being fulfilled."

9 9. That the holder of an Irish visa is not exempt from the other leave to land requirements is made clear from a close analysis of the provisions of s. 4 of the 2004 Act. Section 4(1) provides:-

"Subject to the provisions of this Act, an immigration officer, may on behalf of the Minister give to a non-national, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the state (referred to in this Act as "a permission")."

10 10. Section 4(2) requires that a non-national...