Gayle v Governor of the Duchas Centre

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IEHC 718
• Docket Number: [2017 No. 1071 S.S.]
• Court: High Court
• Date: 27 October 2017

[2017] IEHC 718

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 1071 S.S.]

[2017 No. 743 J.R.]

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

DEANDRA GAYLE

APPLICANT

AND

THE GOVERNOR OF THE Dóchas CENTRE

RESPONDENT

BETWEEN

DEANDRA GAYLE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND,

AND

THE ATTORNEY GENERAL

RESPONDENT

(No. 1)

Constitution – Art. 40.4.2 of Constitution – Legality of detention – Asylum, Immigration & Nationality – Immigration Act 1999 – Immigration Act, 1999 (Deportation) Regulations 2005 (as amended by the Immigration Act, 1999 (Deportation) (Amendment) Regulations 2017

Facts: The applicant challenged the validity of her detention in the prison by way of an application under art. 40 of the Constitution in the first proceedings. By way of the second set of proceedings, the applicant had also challenged the deportation order made by the first respondent ('Minister'). The applicant argued that the Immigration Act, 1999 (Deportation) (Amendment) Regulations 2017 were invalid as those regulations refer to a date of deportation in an accompanying notice.

Mr. Justice Richard Humphreys held that the applicant was in a lawful detention. The Court dismissed the applicant's judicial review application on merits. The Court held that the Minister considered the applicant's constitutional rights while making the deportation order. The Court held that under s. 3 of the 1999 Act, it was not mandatory to mention the date of the deportation, in the deportation order due to practical difficulties.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of October, 2017

1 The applicant came to the State from Jamaica on the 23rd May, 2013 on a visitor's visa, joining her family who live in Cavan. Her step-mother and three sisters are citizens of Ireland and the father has applied for citizenship. Her visitor's visa expired in July, 2013 and she has remained here without permission since as an illegal immigrant for four and a quarter years. On 4th July, 2013 she applied for leave to remain, and that was refused on 28th August, 2013. A proposal to deport was issued on 25th September, 2013 and submissions made on 18th October, 2013. A deportation order was made on 19th May, 2017 which required her to leave the State by the date specified in the notice accompanying the order. On 24th May, 2017 she was notified of a deportation order accompanied by a notice which specified that she was to leave the State by 24th June, 2017. She then consulted solicitors who considered challenging the deportation order on proportionality grounds. Advices of counsel were sought and negative advices were given. Advices of further counsel were sought and those advices were also negative. Towards the end of August and early September, 2017 she called into Cavan Garda Station on two occasions as requested. On 18th September, 2017 she was asked to attend Cavan Garda Station again which she did on 20th September, 2017 when she was arrested on the grounds that she failed to leave the State by the time specified in the deportation order.

The matters before the court

2 There are two applications before the court. Firstly an Article 40 application, in which I made an order for an inquiry on 25th September, 2017. The Governor furnished a certificate on the same date. No point is taken on behalf of the applicant by virtue of the certificate being furnished on behalf of the Governor of the Dóchas Centre rather than the Governor of Mountjoy Prison, which is the legal entity.

3 Secondly, there is a judicial review. I granted leave on the 2nd October, 2017 and allowed an amendment regarding a declaration concerning the invalidity of regulations under the Immigration Act, 1999, and on the hearing date 27th October, 2017 I granted a further amendment to permit the correct regulations to be cited. I gave leave to the applicants to deliver an amended statement of grounds and it was indicated on behalf of the respondent that no amended statement of opposition was required. The judicial review raises a challenge to the deportation order and a claim for a declaration that the ministerial regulations are invalid insofar as they provide that a person is to leave the State by a date specified in the notice accompanying a deportation order.

4 I have heard helpful submissions from Mr. Michael Forde S.C. (with Mr. Paul O'Shea B.L.) for the applicant and from Mr. Robert Barron S.C. (with Ms. Eilis Brennan B.L.) for the respondents.

The issues

5 The issues on the merits are firstly, whether the ministerial regulations are valid insofar as they allow the deportation order to refer to a date in an accompanying notice and secondly, if the regulations are valid whether the arrest was unlawful because the ground stated was that the applicant did not leave the State by the time specified in the order. There is also a third procedural issue, namely whether time should be extended for the bringing of the judicial review proceedings.

Are the regulations valid?

6 The current form of a deportation order is set out in the Immigration Act, 1999 (Deportation) Regulations 2005 ( S.I. No. 55 of 2005) (as amended by the Immigration Act, 1999 (Deportation) (Amendment) Regulations 2017 ( S.I. No. 74 of 2017)). The 2017 regulations are made under s. 7 of the Immigration Act, 1999 which allows the Minister to prescribe matters specified as to be prescribed or to make regulations giving full effect to the Act. Section 3(1) of the 1999 Act provides that subject to the Act the Minister may by way of a deportation order require any non-national specified in the order ' to leave the State within such period as may be specified in the order and to remain thereafter out of the State.' Section 3(7) provides that the deportation order is to be ' in the form prescribed or in a form in the like effect'. Subject to reading a provision in context, the primary rule of interpretation must be to give effect to the purpose of the legislator or rule-maker provided of course that the purpose can be ascertained from the language used. A purposive interpretation is central to any ordered society or any ordered and effective legal system. The legal system is not a doll's house in which semantic-minded interpreters can enjoy word-games. Where a purposive interpretation is available it should be preferred to a semantic interpretation. The qualification that such a purposive interpretation must be available is important because one must recognise that there are cases where the statutory purpose is not at all apparent from the statute and in such cases submissions on behalf of the State in particular can at times be a post hoc reconstruction of a purpose designed on a bespoke basis to resolve a difficultly in a particular case. In such a case the semantic interpretation is the only one properly available. In this case however s. 3 does not in fact require a date to be named expressly in the deportation order. It refers to such a period as is specified - and a period is specified, albeit one requiring one to look at a separate document. The semantic interpretation urged by Mr. Forde therefore does not succeed. That is reinforced by a purposive interpretation. The purpose of the statute is to provide for an ordered immigration system accompanied by due consideration of any submissions made by applicants and due regard to their rights. No interference with any rights of an applicant is occasioned by specifying the date in one document rather than in another. On the other hand an effective immigration system would be entirely thwarted by requiring the date to be specified in the order. The Minister cannot know when making the order precisely when it will be practicable to serve the order on an applicant.

7 In that regard I place reliance on the affidavit of Tom Doyle, an Assistant Principal Officer of the Department of Justice and Equality. At para. 4 he avers that at the time a deportation order is signed it is not certain on what date it will issue and that matter will be dependent on whether an address is available for the person to...