Gjonaj v Governor of Cloverhill

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 15 November 2016
• Neutral Citation: [2016] IECA 330
• Date: 15 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 330 No. 2016/493 No. 2016/490 No. 2016/491

[2016] IECA 330

THE COURT OF APPEAL

CIVIL

Birmingham J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2016] IECA 330

No. 2016/493

No. 2016/490

No. 2016/491

IN THE MATTER OF APPLICATIONS PURSUANT TO

ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

EMIRION GJONAJ

APPELLANT

V

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

DIBYASWOR SHARMA

APPELLANT

V

MEMBER IN CHARGE STORE STREET GARDA STATION

RESPONDENT

AND

PRINCE IGHODARO

APPELLANT

V

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Detention – Deportation – Documentation – Appellants seeking release under Article 40 of the Constitution – Whether documentation provided a valid basis for justifying detention

Facts: Each of the appellants were arrested under s. 5 of the Immigration Act 1999 and brought to a prescribed place, Cloverhill Prison or Store Street garda station. Each appellant was the subject of a deportation order. In the case of Mr Sharma there was an application for an inquiry, pursuant to Article 40 of the Constitution, dated the 20th October, 2016, and subsequently an application in the case of Mr Gjonaj on the following day and one in respect of Mr Ighodaro on the 24th October, 2016. In the case of Mr Sharma, Sergeant Murray certified in writing that the appellant was held pursuant to detention order dated the 20th October, 2016 and exhibited a notification of arrest and detention. In the case of Mr Gjonaj, Mr Maher, Governor of Cloverhill Prison, certified that the appellant was held pursuant to detention order dated the 19th October, 2016 and exhibited a notification of arrest and detention. In the case of Mr Ighodaro, Governor Maher certified that the appellant was held pursuant to detention order dated the 21st October, 2016 and exhibited a notification of arrest and detention. The appellants in each case complained that the documents the detainers (the respondents) sought to rely on were not in fact and did not purport to be warrants of detention. To this challenge the respondents asserted that there was no basis for the criticism of the original detention orders, but furthermore sought, on a without prejudice basis, to amend the certified grounds of detention. In the case of Mr Sharma, Sergeant Murray certified that the appellant was held pursuant to a warrant of arrest and detention dated the 20th October, 2016. The certificate was signed on the 26th October, 2016 and exhibited a new document entitled “Warrant of arrest and detention”. Similar certificates were produced by Mr Hernan, Assistant Governor of Cloverhill Prison, in the cases of Mr Gjonaj and Mr Ighodaro. On the 7th November, 2016, the High Court (Humphreys J) refused to order the release of the appellants. The appellants appealed to the Court of Appeal against that judgment and order. It was agreed that resolution of this dispute required that consideration be given to three issues, namely: 1) Does the original certification accompanied by the documentation exhibited which is headed up “Notification of arrest and detention” provide a valid basis for detention?; 2) Should the respondents be permitted to amend their certificates, based on new documentation headed up “Warrants and arrest and detention”?; 3) Is the new documentation invalidated by errors of such a fundamental nature that they cannot be relied upon?

Held by Birmingham J that he diverged from the High Court judge in the approach that he took to the validity of the original documentation i.e. the documentation headed “Notification of arrest and detention”. Birmingham J held that the document originally relied on does everything that a warrant could be expected to do; the fact that the document might have been and perhaps ought to have been drafted differently did not provide a basis for condemning the document. Birmingham J held that neither the Prison Governor or Member in Charge to whom it was addressed nor the person in respect of whom it was issued could have been left in any doubt whatever about what the impact of the document was; there was absolutely no question of anyone being misled. In those circumstances Birmingham J was of the view that the documentation originally brought into existence provided a valid basis for justifying the detention and on this aspect Birmingham J would allow the cross appeal by the Prison Governor and Member in Charge.

Birmingham J held that in each case the applications for release under Article 40 failed and that he would allow the Governor’s cross appeal.

Judgment approved.

JUDGMENT of the Court delivered on the 15th day of November 2016 by Mr. Justice Birmingham

1 These appeals which raise identical issues have been heard together. At issue are appeals from the judgment and order of the High Court (Humphreys J.) dated the 7th November, 2016, refusing to order the release of the applicants/appellants.

2 In summary the position is that each of the applicants/appellants has been arrested under s. 5 of the Immigration Act 1999 and brought to a ‘prescribed place’, Cloverhill Prison or Store Street garda station. Each applicant/appellant is the subject of a deportation order. In the case of Mr. Sharma there was an application for an inquiry, pursuant to Article 40 of the Constitution, dated the 20th October, 2016, and subsequently an application in the case of Mr. Gjonaj on the following day and one in respect of Mr. Ighodaro on the 24th October, 2016.

3 The detainers certified the grounds for detention as follows. In the case of Mr. Sharma, Sergeant Karl Murray certified in writing that the appellant was held ‘pursuant to detention order’ dated the 20th October, 2016. The certificate in question was signed on the 21st October, 2016 and exhibits a ‘notification of arrest and detention’.

4 In the case of Mr. Gjonaj, Mr. Ronan Maher, Governor of Cloverhill Prison certified that the appellant was held ‘pursuant to detention order’ dated the 19th October, 2016. The certificate was signed on the 25th October, 2016 and exhibited in notification of arrest and detention.

5 In the case Mr. Ighodaro, Governor Maher of Cloverhill prison certified that the appellant was held ‘pursuant to detention order’ dated the 21st October, 2016 and exhibited a notification of arrest and detention.

6 In essence, the appellants in each case have complained that the documents the detainers have sought to rely on were not in fact and did not purport to be warrants of detention. To this challenge the respondents have asserted that there is no basis for the criticism of the original detention orders, but furthermore have sought, on a without prejudice basis, to amend the certified grounds of detention. The proposed amended certificates of detention provided as follows: in the case of Mr. Sharma, Sergeant Murray certified that the appellant was held pursuant to a warrant of arrest and detention dated the 20th October, 2016. The certificate was signed on the 26th October, 2016 and exhibits a new document entitled ‘Warrant of arrest and detention’. Similar certificates were produced by Mr. Joseph Hernan, Assistant Governor of Cloverhill Prison in the cases of Mr. Gjonaj and Mr. Ighodaro. For ease of reference I am appending to this judgment a copy of the original and amended documentation in relation to Mr. Gjonaj. It is in each case a pre-printed form where the spaces left blank have been completed in handwriting.

The statute and statutory instruments

7 The statute and statutory instruments in issue provides as follows:

‘The International Protection Act 2015

Part 13 Miscellaneous Amendments

Amendment of Immigration Act 1999.

78. The Immigration Act 1999 is amended by the substitution of the following for section 5:

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—

(a) has failed to leave the State within the time specified in the order,

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

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

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

(e) intends to avoid removal from the State,

the officer or member may arrest the person without warrant, and a person so arrested may be taken to a place referred to in subsection (3) and detained in the place in accordance with that subsection.

(2) Where a person against whom a deportation order is in force is serving a term of imprisonment in a prison or place of detention, an immigration officer or a member of the Garda Síochána may, immediately on completion by the person of the term of imprisonment, arrest the person without warrant and detain him or her in accordance with subsection (3).

(3) A person who is arrested and detained under...