Fatai Ganyiu v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 12 November 2013
• Neutral Citation: [2013] IEHC 511
• Court: High Court
• Date: 12 November 2013

[2013] IEHC 511

THE HIGH COURT

[No. 1965 SS/2013]

Ganyiu v Governor of Cloverhill Prison

[2013] IEHC 511

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

FATAI GANYIU

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

IMMIGRATION ACT 2004 S4(5)(A)

TOIDZE v GOVERNOR OF CLOVERHILL PRISON UNREP HOGAN 24.10.2011 2011/47/13408 2011 IEHC 395

DUNNE v CLINTON 1930 IR 366

PEOPLE v O'LOUGHLIN 1979 IR 85

IMMIGRATION ACT 2004 S4(5)

IMMIGRATION ACT 2003 S5(2)(A)

NI v GARDA COMMISSIONER UNREP HOGAN 27.3.2013 2013 IEHC 134

KRISTO v GOVERNOR OF CLOVERHILL PRISON & ORS UNREP MAC EOCHAIDH 16.5.2013 2013 IEHC 218

CONSTITUTION ART 40.4.2

Legality of detention - Processing for immigration purposes - Leave to land - Designated place of detention - Unforeseen contingencies - Intention to use Dublin Airport as place of detention

The applicant, Fatai Ganyiu, a Nigerian national, was the recipient of a deportation order from the Minister for Justice and Equality. In August 2013, he was arrested and detained in the United Kingdom where he was held in various holding centres by the UK order Agency until such arrangements could be made for his return to Ireland. He was flown to Dublin on the 5 ^th of November 2013 where he arrived at 8:15am, was parked in a holding bay at 8:30am, and was then arrested and refused leave to land. He was removed from Terminal 2 to Cloverhill at 1:30pm where he arrived at 2:40pm. The issue to be decided in this case was the legality of the detention between the periods of 8:30 am and 1:30pm.

The applicant contended that there were two separate reasons that the custody he was in during this period was illegal. Firstly, it was argued that there was no legal basis for his detention for the period between his being taken off the aircraft and his being refused leave to land. Secondly, it was contended that his detention at Terminal 2 was illegal between 9:30am and 1:32pm when he was transported to Cloverhill prison. The court examined each period in turn.

Concerning the period of restraint prior to refusal of leave to land, Mr. Ganyiu was driven from Terminal 1 to Terminal 2 where he was processed for immigration purposes. He was then formally refused leave to land at 9:30am. It was held that, during this period, the applicant”s position could not realistically be compared with other travellers as he had already been the subject of a deportation order and transferred under the provisions of the Dublin Regulation. Therefore, it was decided as appropriate that special arrangements for his transfer from the aircraft to Terminal 2. This period of restraint was held to be ‘part and parcel’ of the examination of the applicant for the purposes of section 4 of the Immigration Act 2004. The argument that the applicant was in unlawful detention for this period was rejected.

Concerning the second period of detention, it was noted that the applicant was in fact detained at Terminal 2 between 9:30am and 1:30pm, and that Dublin Airport was not a designated place of detention under section 5 of the Immigration Act 2003. The applicant sought to rely on the decision in Ni v Garda Commissioner where it was held that the detention of a person who had been refused leave for 5 hours in Terminal 2 had been unlawful as he had been detained for 4 hours at Terminal 2. It was held that this case could be distinguished from Ni. In Ni, there had been no attempt to detain the applicant anywhere other than Terminal 2, which was unlawful as it was not a designated place of detention. In this case, however, there was never any intention to detain Mr. Ganyiu at Terminal 2 for any extended period of time. It was the result of unforeseen circumstances that Mr. Ganyiu had not been transported to Cloverhill prison within minutes of his arrival at the airport.

The detention was therefore decided to be lawful.

1 1. The applicant, Fatai Ganyiu, is a Nigerian national in respect of whom a deportation order has already been made by the Minister for Justice and Equality. In the last days of August 2013 Mr. Ganyiu was arrested and detained in the United Kingdom. He was then held by the UK Border Agency in various holding centres in the UK until arrangements were made for his return to Ireland under the provisions of the Dublin Regulation.

2 2. The applicant was accordingly flown for this purpose on a British Airways flight from Heathrow Airport to Dublin on the morning of 5 ^th November, 2013. The aircraft arrived from London at 8.15am and parked in a holding bay at Terminal 1 at about 8.30am. As we shall presently see, the applicant was subsequently arrested and refused leave to land. He was then removed from Terminal 2 to Cloverhill Prison at approximately 1.30pm and he arrived at Cloverhill Prison at approximately 2.40pm later that afternoon. The issue which I have to consider is whether his detention in the interval between 8.30am and approximately 1.30pm was lawful.

3 3. The evidence given on behalf of the respondent may be summarised as follows. First, Sergeant Doyle gave evidence that he is attached to the Garda National Immigration Bureau at Dublin Airport and supervises immigration matters. He was aware that Mr. Ganyiu was scheduled to arrive in the State on the early morning British Airways flight and he instructed Det. Garda Murphy to meet that flight on its arrival in Terminal 1. Sergeant Doyle then gave evidence that Mr. Ganyiu was brought to his office in Terminal 2 where the latter's application was processed and he was formally refused leave to land at about 9.30am.

4 4. Sergeant Doyle had made arrangements to have Mr. Ganyiu taken from Dublin Airport to Cloverhill Prison and the appropriate Garda escort unit had been notified. Shortly after Sergeant Doyle had supervised the formal refusal of Mr. Ganyiu's leave to land, he was informed that the escort unit needed first to go back to Clontarf Garda Station in order to collect another person who was being deported and who was scheduled to leave on a 11.00am flight. It was then arranged that the unit would go first to Clontarf Garda Station and thereafter take Mr. Ganyiu to Cloverhill Prison. As it happens, however, as soon as the escort unit arrived back in Terminal 2 for this purpose at about 10.00am, it was then necessary for them to make an unexpected diversion to deal with an alleged shoplifting incident in a retail outlet at that terminal.

5 5. By reason, therefore, of this unexpected sequence of events, the escort unit only arrived back in Terminal 2 again at 1.20pm. The unit then immediately took Mr. Ganyiu and another individual (who had been quite separately arrived back into the State under the Dublin Regulation in the course of the morning) for Cloverhill Prison. The escort unit left at approximately 1.32pm.

6 6. Det. Garda Murphy gave evidence that he was also a member of the Garda National Immigration Bureau who was on duty that morning at Terminal 2. Detective Garda Murphy stated that he had been informed by Sergeant Doyle of the fact that Mr. Ganyiu was arriving in the State and he was directed to meet the British Airways aircraft as it arrived. He went up the steps to the aircraft and spoke to the British Airways flight attendants. They had directed Mr. Ganyiu not to leave the aircraft until all other passengers had alighted.

7 7. Det. Garda Murphy then introduced himself to Mr. Ganyiu and directed Mr. Ganyiu to accompany him. Det. Garda Murphy then drove Mr. Ganyiu in a van from Terminal 1 to Terminal 2. Upon his arrival at the immigration office in Terminal 2, Mr. Ganyiu was then processed and formally refused leave to land. Mr. Ganyiu was offered a sandwich and some water while the appropriate documentation was completed by Det. Garda Murphy. One further complicating fact was that the escort van which Det. Garda Murphy had used for the purpose of conveying Mr. Ganyiu from Terminal 1 to Terminal 2 was not sufficiently roadworthy for use on a public road for the journey from Terminal 2 to Cloverhill Prison and, accordingly, that escort van could not have been used for this purpose.

8 8. The first objection raised by counsel for Mr. Ganyiu, Mr. Humphreys S.C., is to the detention of the applicant for the period when he disembarked off the airplane until he was formally refused leave to land. The evidence established that the airplane parked at the stand at about 8.30 am and that Mr. Ganyiu was the last to leave the aircraft. One may assume, therefore, that the applicant was under effective restraint from the point where Detective Garda Murphy required him to accompany him, which was probably about 8.40am or...