Darchiashvili v Governor of Mountjoy Women's Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 23 June 2011
• Neutral Citation: [2011] IEHC 264
• Docket Number: No. 1189 SS/2011
• Court: High Court
• Date: 23 June 2011

[2011] IEHC 264

THE HIGH COURT

No. 1189 SS/2011

Darchiashvili v Governor of Mountjoy Women's Prison

APPROVED

Mr. Justice Edwards

JUDGMENT

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

BETWEEN

LEILA DARCHIASHVILI

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY WOMEN'S PRISON

RESPONDENT

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 S5

IMMIGRATION ACT 1999 S7

IMMIGRATION ACT 1999 S5(1)

IMMIGRATION ACT 1999 S3(1A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(B)

HEALTH ACT 2004 SCHED 6 PART 18

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2005 SI 55/2005 REG 5

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2005 SI 55/2005 REG 6

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2005 SI 55/2005 REG 7

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10

CONSTITUTION ART 26

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

CONSTITUTION ART 26.2.2

IMMIGRATION ACT 1999 S5(4)

INTERPRETATION ACT 2005 S5

IMMIGRATION ACT 1999 S5(6)

AG v COX UNREP CCA 9.4.1929 (TRANSCRIPT NOT AVAILABLE)

DUNNE v CLINTON 1930 IR 366 1930 64 ILTR 136

CONSTITUTIONAL LAW

Legality of detention

Deportation order - Failure to present as required - Arrest and detention pending arrangements for deportation - Whether applicant in unlawful detention - Certification of grounds of detention - Detention order - Authorised person - Alleged failure of arresting officer to comply with essential precondition to lawful exercise of power - Failure to notify governor of prison of arrest - Whether mere procedural irregularity - Entitlement of authorised person to transfer physical custody of detained person - Necessity for person in charge of prescribed place of detention to know period of prior custody - Requirement to give notification of arrest necessary to give effect to power of arrest and detention - Whether purported delegation of power unlawful - Laurentiu v Minister for Justice [1999] 4 IR 26; Gutrani v Governor of Wheatfield Prison (Unrep, Flood J, 19/2/1993); Attorney General v Cox (Unrep, CCA, 9/4/1929) and Dunne v Clinton [1930] IR 366 considered - Offences Against the State Act 1939 (No 13), s 30 - Immigration Act 1999 (No 22), s 3, 5 and 7 - Immigration Act (Deportation) Regulations 2005 (SI 55/2005) - Order directing release (2011/1189SS - Edwards J - 23/6/2011) [2011] IEHC 264

Darchiashvili v Governor of Mountjoy Women's Prison

Mr. Justice Edwards

1 The applicant was born in Georgia on 15^th November, 1955. She came to Ireland in March, 2005 and has lived in Ireland since that time. She unsuccessfully sought asylum on the basis that she was a refugee. On 24^th June, 2005, the applicant was notified that she was being refused refugee status and she pursued an appeal from this decision. This appeal was unsuccessful. On 29^th December, 2005, the applicant was notified that the Minister for Justice, Equality and Law Reform (as the relevant Minister was then entitled) had decided to refuse to give her status as a refugee and was considering her deportation.

2 Subsequently, she sought leave to remain in the State under s.3 of the Immigration Act1999, as amended (hereinafter "the Act of 1999") and to that end representations were made on her behalf by the Refugee Legal Service. However, these representations were unsuccessful and a deportation order was made in respect of the applicant on 2^nd May, 2006. The applicant was then required to present herself at the offices of the Garda National Immigration Bureau, Burgh Quay, Dublin 2 on 6^th July, 2006, to facilitate the making of arrangements for her removal from the state. The applicant did not present herself as required and was deemed to be an 'evader'.

3 The applicant then left Dublin and went to live in Cashel for some time but later returned to Dublin and took up residence at 95 Meath Street, Dublin 8. The applicant did not notify the authorities of her changes of address pursuant to her obligations.

4 On the 13^th June, 2011, the applicant was arrested and detained and taken to 'The Dóchas Centre' (Mountjoy Women's Prison) where she continues to be detained pending the making of arrangements for her removal from the State. The Court has been given to understand by counsel for the respondent that her arrest and detention was effected by a member of An Garda Siochána attached to the Garda National Immigration Bureau. On Thursday the 23^rd June, 2011, the applicant made a complaint that she was being unlawfully detained and sought an inquiry pursuant to Article 40.4.2 of the Constitution (Bunreacht na hÉireann). The Court opened an inquiry pursuant to Article 40.4.2 aforesaid and required the respondent to certify in writing the grounds of the applicant's detention and further required the respondent to produce the body of the respondent before the Court, both of which requirements were complied with.

5 On Friday the 24^th June, 2011, this Court, following due inquiry in the course of which the respondent was given an opportunity of justifying the detention, concluded that the applicant was in unlawful detention and directed her release. The Court stated that it would give its reasons in a reserved judgment to be delivered in due course. I now give those reasons.

6 Pursuant to the Order of this Court made on the 23^rd June, 2011, the respondent certified in writing later on the same day that: -

"I hold the applicant in custody at Mountjoy Women's Prison pursuant to detention order dated the 13^th day of June 2011."

7 A photostatic copy of the so called "detention order" referred to was annexed to the certificate. This purported "detention order" is in fact a document entitled "An Garda Siochána, Immigration Act,1999 (No. 22 of 1999) Notification of Detention". It is reproduced in full in the appendix to this judgment. It is addressed to the Governor of Mountjoy Women's Prison, and is in two parts. The operative clause in the first part of the document states:-

"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) made in exercise of the powers conferred by Section 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 Leila Darchiashvili, DOB 15/11/1955 be detained in Mountjoy Women's Prison a prescribed place for the purpose of Section 5(1) of the Immigration Act, 1999 (No 22 of 1999). The basis of such Detention is that the said name (sic) intends to avoid removal from the State."

8 The first part of the document is signed with an unintelligible signature above the words "authorised person", and is date stamped 13 June, 2011, using the stamp of the "Garda National Immigration Bureau - Detective Sergeant's Office".

"Executed within order by lodging the person ofLeila Darchiashvili, DOB 15/11/1955 at Mountjoy Womens Prison on, 13/06/2011 at 8.50 pm"

The second part of the document records:-

9 The second part of the document is also signed with the same unintelligible signature, again above the words "authorised person", and again is date stamped 13 June, 2011, using the stamp of the "Garda National Immigration Bureau - Detective Sergeant's Office".

10 Section 3(1A) of the Immigration Act1999 (as inserted by s. 10(a) of the Illegal Immigrants (Trafficking) Act 2000) provides:-

11 2 "3.- (1A) A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State."

12 Section 5 of the Immigration Act1999 (as amended by s. 10(b) of the Illegal Immigrants (Trafficking) Act 2000 and Schedule 6, part 18 of the Health Act 2004) provides:-

13 2 "5.- (1) Where an immigration officer or a member of the Garda Síochána, with reasonable cause suspects that a person against whom a deportation order is in force-

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

15 (b) intends to leave the State and enter another state without lawful authority,

16 (c) has destroyed his or her identity documents or is in possession of forged identity documents, or

(d) intends to avoid removal from the State,

17 he or she may arrest him or her without warrant and detain him or her in a prescribed place.

18 (2) A person arrested and detained under subsection (1) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.

19 (3) The master of any ship and the person in charge of any railway train, road vehicle or aircraft bound for any place outside the State shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person against whom a deportation order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

20 (4) (a) Subsection (1) shall not apply to a person who is under the age of 18 years.

21 (b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (1) shall apply as if he or she had attained the age of 18 years.

22 (c) Where an unmarried child under the age of 18 years is in the custody of any person...