Datia Toidze (Arabuli) v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 24 October 2011
• Neutral Citation: [2011] IEHC 395
• Court: High Court
• Date: 24 October 2011

[2011] IEHC 395

THE HIGH COURT

[No. 2112 SS/2011]

Toidze (orse Arabuli) v Governor of Cloverhill Prison

BETWEEN

DATIA TOIDZE (OTHERWISE ARABULI)

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

CONSTITUTION ART 40

IMMIGRATION ACT 2003 S5(2)

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(9)(B)

ROBERTSON v GOVERNOR OF THE DOCHAS CENTRE UNREP HOGAN 25.1.2011 2011 IEHC 24

IMMIGRATION ACT 2004 S5

G (A G) v MIN FOR JUSTICE 2003 3 IR 445

DUNNE v CLINTON 1930 IR 366

THE PEOPLE v O'LOUGHLIN 1979 IR 85

IMMIGRATION ACT 2004 S4(5)(A)

IMMIGRATION ACT 2004 S4(5)

O (B F) v GOVERNOR OF THE DOCHAS CENTRE 2005 2 IR 1

OM v GOVERNOR OF CLOVERHILL PRISON UNREP HOGAN 1.8.2011 2011 IEHC 341

IMMIGRATION ACT 1999 S5(6)(A)

CONSTITUTION ART 40.4.2

IMMIGRATION LAW

Leave to land

Power of immigration officer - Ordinary residence - Applicant refused leave to land - Applicant restrained and conveyed to garda station before arrest - Applicant detained pending removal from State - Whether applicant ordinarily resident in State - Whether restraint and conveyance lawful -Application to revoke deportation order outstanding at time of arrest - Whether concluded intention to deport applicant within requisite time period of eight weeks - Whether detention lawful - The State (Goertz) v Minister for Justice [1948] IR 45 and GAG v Minister for Justice [2003] 3 IR 442 applied - Robertson v Governor of the Dóchas Centre [2011] IEHC 24, (Unrep, Hogan J, 25/1/2011) approved - Dunne v Clinton [1930] IR 366; The People v O'Loughlin [1979] IR 85 considered - B.F.O. v Governor of Dóchas Centre [2005] 2 IR 1 and Om v Governor of Cloverhill Prison [2011] IEHC 341, (Unrep, Hogan J, 1/8/2011) distinguished - Immigration Act 1999 (No 22), ss 3 and 5 - Immigration Act 2003 (No 26), s 5 - Immigration Act 2004 (No 1), ss 4 and 5 - Constitution of Ireland 1937, art 40 - Detention lawful (2011/2112SS - Hogan J - 23/10/2011) [2011] IEHC 395

Toidze v Governor of Cloverhill Prison

Facts The applicant had originally arrived in Ireland in the year 2000 and had unsuccessfully sought asylum. Eventually an order for his deportation was made but the applicant left the State before it could be served. The applicant had subsequently returned to Ireland, got married here and had two children. The applicant had come to the attention of the authorities in Northern Ireland in relation to the status of insurance on a motor vehicle. Ultimately the police applicant was returned to the Gardaí in the Republic. A deportation was in existence for the applicant and it fell to be decided as to whether the applicant had been ordinarily resident for the period of five years in the State and would therefore be entitled to a three-month notice period under section 3(9)(b) of the Immigration Act, 1999. An application for the applicant's release was brought under Article 40.4 of the Constitution.

Held by Hogan J in refusing the application. The applicant although physically resident in the State could not be said to have been 'ordinarily resident'. The manner in which the Gardaí conveyed the applicant to a nearby Garda station to be examined was lawful within the meaning of section 4(5) of the Immigration Act, 2004. There had been no deliberate intention to keep the applicant incommunicado. Whilst there had been a delay of almost ten years in enforcing the outstanding deportation order, the applicant had consistently frustrated the enforcement of the order by his own deception. There was a settled determination to deport the applicant within the relevant time period as set under section 5(6)(a) of the Immigration Act, 1999.

Reporter: R.F.

1 1. This is an application pursuant to Article 40 of the Constitution for the release of the applicant, Datia Toidze (otherwise David Arabuli), who is presently detained in Cloverhill Prison following his arrest pursuant to s. 5(2) of the Immigration Act 2003 ("the 2003 Act"). The applicant is a Georgian national. He was, as we shall presently see, arrested on the 3 ^rd October, 2011, by Garda Paul Dunne, having entered the State from Northern Ireland and then subsequently having been refused leave to land. There is no doubt but that this application presents difficult issues of law against a rather unusual factual background.

2 2. The applicant originally entered the State in October, 2000 and unsuccessfully sought asylum. His original application for asylum was under an alias, Datia Toidze, but he also subsequently applied for asylum under this own name, David Arabuli. The Minister for Justice, Equality and Law Reform made an order in December, 2001 providing for the deportation of the applicant from the State. In the deportation order the applicant was described by both names, i.e. the real name and the alias. The applicant was required to present shortly thereafter to Letterkenny Garda Station, but when he did not do so on the appointed day, he was later classified as an evader.

3 3. It appears that the applicant somehow left the State and travelled to Iceland. In April, 2003 the Icelandic authorities returned him to Ireland under the provisions of the Dublin Convention. It appears that he had also made an application for asylum in Iceland, again using an entirely different alias. At all events the applicant has been physically resident in the State since his return from Iceland in April, 2003. In the meantime he has lived here with his Georgian wife - they got married here in 2009 - and they have had two children, both of whom were born in the State.

4 4. The circumstances giving rise to this present application under Article 40 began on the evening of the 25 ^th September, 2011. It appears that the applicant and a friend of his, Mr. Gagloshvili, travelled from Dublin to Donegal with a view to buying a second hand motor vehicle. I should interpose here to say that Mr. Gagloshvili is another Georgian national who happens to be married to an Irish citizen and he also has permission to reside here. It would appear that both the applicant and Mr. Gagloshvili transited through Northern Ireland with a view to travelling to Donegal in order to purchase this vehicle. On the return journey, Mr. Gagloshvili, who was driving the car, re-entered Northern Ireland on his way back to Dublin.

5 5. While this may well have been by reason of a navigational error - as both Mr. Gagloshvili and the applicant claimed in evidence - it seems clear to me that they had no particular interest in entering Northern Ireland and that insofar as they were in Northern Ireland, it was simply for the purpose of transiting the most direct route from Donegal to Dublin. As they travelled through Northern Ireland, however, they were stopped by officers of the Police Service of Northern Ireland. An issue arose as to whether the newly purchased car had motor insurance and the PSNI also queried the immigration status of both Mr. Gagloshvili and the applicant. The process culminated in Mr. Gagloshvili appearing before a Magistrates Court in Northern Ireland where he was convicted and fined for the offence of driving without insurance. Both men were also detained in a detention centre in Larne while the authorities sought to ascertain their precise immigration status. Both Mr. Gagloshvili and the applicant indicated that they wanted to return to the State and the PSNI accordingly made arrangements for their delivery from Larne to the border on the morning of the 3 ^rd October, 2011.

6 6. An application to revoke the deportation order under s. 3(11) of the Immigration Act 1999, was still outstanding at the date of his arrest. That application was refused by letter dated 18 ^th October 2011. I propose now to consider the legal issues which arise for determination.

Whether the applicant was ordinarily resident in the State?

7 7. Section 3(9)(b) of the Immigration Act 1999 ("the 1999 Act") provides:-

"A person who is ordinarily resident in the State and has been so resident for a period (whether partly before or partly after the passing of this Act or wholly after such passing) or not less than five years and is for the time being employed in the State or engaged in a business or the practice or profession in the State other than - "

(i) a person who is served or is serving a term of imprisonment imposed on him or by court in the State, or

(ii) a person whose deportation order has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence, shall not be deported from the State under this section unless three months' notice in writing of such deportation to be given by the Minister to such person."

8 8. Mr. Arabuli accepted in cross examination that he was not working or was otherwise employed, so the special notice requirement of s. 3(9)(b) does not apply to him.

9 9. Quite independently of those considerations, however, it must be doubted whether a person in the position of the applicant could ever be said to be "ordinarily resident" in the sense envisaged by this sub-section. In Robertson v. Governor of the Dóchas Centre [2011] IECH 24, I had occasion to consider the position of the South African applicant who had lived and resided in the State since August, 2004 under her own name and pursuant to permission granted by the Minister pursuant to s. 5 of the Immigration Act 2004. Critically, however, that applicant had not disclosed that she had previously arrived in the State and...