H.B. v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 30 May 2022
• Neutral Citation: [2022] IEHC 313
• Court: High Court
• Docket Number: Record No. 2021/1321 SS

In the Matter of an Inquiry Pursuant to Article 40.4.2 of the Constitution

Between:

H.B

Applicant

and

The Governor of Mountjoy Prison

Respondent

[2022] IEHC 313

Record No. 2021/1321 SS

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 30 ^th of May, 2022.

INTRODUCTION

1 . This matter comes before me on the Applicant's application for costs limited to the ex parte application made seeking an inquiry pursuant to Article 40.4.2 of the Constitution. The application is brought in circumstances where an inquiry was directed with a requirement that the grounds of detention be certified and the Applicant be produced before the Court but where the Applicant had been released from custody prior to the return date on the Inquiry.

2 . The Respondent resists the application for costs contending that the Applicant moved the application on a version of events which has been flatly contradicted, has abandoned her proceedings and has failed to comply with the directions of the Court regarding the filing of an affidavit in her own name.

BACKGROUND

3 . The Applicant claims to be a Sudanese national. She was apprehended at Dublin Airport on or about the 18 ^th of September, 2021 when she failed to produce a valid travel document. A stolen British passport and boarding card was located on the aircraft from which she had disembarked. During her exchanges with Gardaí at the Airport she indicated an intention to apply for asylum. She was refused leave to land and arrested for an offence contrary to s. 18 of the Criminal Justice ( Theft) Act, 2001 (as amended), namely possessing a British passport which had been reported stolen and cancelled. During a subsequent interview she admitted to unlawful possession of the passport and to having attempted to destroy the document to prevent the Irish authorities discovering that she had used it. It is claimed that during this interview she expressed a wish to return immediately to Sudan which the interviewing Garda interpreted as an implied intention to no longer pursue her international protection application.

4 . She appeared via video link from Kevin Street Garda Station before the District Court on the 20 ^th of September, 2020 charged with related offences on a number of charge sheets. She pleaded guilty and a plea in mitigation was entered in which it was indicated to the Court on her behalf that she intended to apply for asylum in the State. In sentencing the Judge applied s. 1(1) of the Probation of Offenders Act, 1908, it being noted that she wished to make an application for international protection.

5 . There are two different versions of what next occurred.

6 . On the Applicant's instructions, her solicitor (who is a different solicitor to the solicitor who attended before the District Court) has sworn that she was intercepted by the Gardaí on the Quays, Dublin City as she made her way to Mount Street, Dublin 2 to the offices of the International Protection Office in an apparent attempt to frustrate an application for asylum. Thereafter she was taken to Mountjoy Prison where, according to her instructions to her solicitor, she also reported to prison officers a wish to apply for asylum. When she had a consultation with her solicitor on the 22 ^nd of September, 2021, it was understood that there was a proposal to deport her on the following morning, namely, the 23 ^rd of September, 2021.

7 . Following the consultation on the 22 ^nd of September, 2021, her solicitors emailed Mountjoy Prison confirming in writing that the detention was considered to be unlawful, that the Applicant wished to apply for asylum and requesting that she be provided immediately with an application form followed by her release. This email was sent at 18.24 and is exhibited in the affidavit grounding the later application that same evening to the High Court for an inquiry under Article 40.4.2 of the Constitution.

8 . It is important to note that when making application for an inquiry, the Applicant's lawyers elected not to make an application under the Legal Aid in Custody Scheme.

9 . On the other hand, contrary to the averments made on the Applicant's instructions by her solicitor in grounding the application for an inquiry, the Garda deponent (Garda Breen) avers that on leaving Kevin Street Garda Station at circa 15.00 on the 20 ^th of September, 2021 following the conclusion of the District Court hearing, the Applicant was given directions to the International Protection Office at Mount Street, Dublin 2. It is contended by Garda Breen that she subsequently made enquiries to discover that the Applicant had not presented at the International Protection Office, Mount Street before that office closed at 16.00. Garda Breen claims that she then went to Mount Street and observed the Applicant outside the offices, sitting down. Garda Breen claims that she approached the Applicant and asked whether or not she still wished to apply for asylum. She avers on affidavit that the Applicant indicated that she did not wish to make an application, stating that she wished to meet with a friend and would fly home to Sudan the next day.

10 . Garda Breen further claims to have advised the Applicant that if she was not making an application for asylum she would be arrested and returned to Doha International Airport, Qatar. She claims to have been satisfied that the Applicant understood her options and had not wish to follow-up with any application for asylum with the International Protection Office. Thereafter the Applicant was arrested pursuant to the provisions of s. 5(2) of the Immigration Act, 2003 (as amended). It is claimed that she then further confirmed through an interpreter that she did not wish to apply for asylum but preferred to return to Sudan. A warrant for temporary detention was signed to execute her removal from the State in an orderly and timely manner. She was due to be removed from the State early on the morning of the 23 ^rd of September, 2021 but these arrangements were cancelled. According to Garda Breen (para. 13 of her Affidavit):

“ the flight and related removal arrangements were scheduled for quite early Thursday morning but were halted when the terms of her production were established to the satisfaction of GNIB”.

11 . It is claimed by the Garda deponent that the first clear indication of an intention to claim asylum was given when an email was received from the Applicant's solicitor on the evening of the 22 ^nd of September, 2021 proximate in time to the moving of the application for an inquiry on an ex parte basis before the High Court and when there was no one available to attend to the correspondence. It is contended that on making her application for protection, the Applicant's position changed, and she was accepted as a protection seeker by the International Protection Office thereby becoming automatically entitled to a statutorily prescribed right to remain in the State and consequently she was released. It is nonetheless contended that until such time as she made her application for protection, she had no temporary right to reside in the State and her statutorily prescribed detention for the purposes of her removal remained fully and validly in force. As Garda Breen deposes (para. 15 of her Affidavit):

“As matters stood when the application was commenced on Wednesday evening, the Applicant had no right to remain in the State and the Minister retained the intention to remove her within the relevant statutory timeframe. Once the position changed and she had been accepted as an applicant by the IPO, as occurred after the proceedings were in being, then she became automatically entitled to a statutorily prescribed right to remain in the State for the duration of her protection hearing/appeal and of course the Garda would not endeavour to remove her during this period (other than in some rare and exceptional circumstances established by law); such would be the case for any person similarly positioned.”

12 . When it was originally moved, the application for an inquiry pursuant to Article 40.4.2 of the Constitution was grounded on an affidavit sworn by the Applicant's solicitor on instructions from the Applicant and was premised on a hearsay version of events which centred around the Gardaí intercepting the Applicant on the Quays in Dublin City for the seemingly untoward purpose of obstructing her from making her way to the International Protection Office. In response, Garda Breen provided a sworn account which contradicts the account contained in the Applicant's solicitor's affidavit and flatly contradicts that the Applicant was arrested on the Quays for the purpose of preventing her attending at the International Protection Office to seek asylum as had been contended before the Court.

13 . By the return date for the Inquiry pursuant to Article 40.4.2 of the Constitution on the 24 ^th of September, 2021, the Applicant was no longer in detention. She did not appear in Court but was legally represented and her advisors informed the Court that she was having difficulty finding the Court being unfamiliar with Dublin city. The Court (Heslin J.) was appraised as to the conflict of facts as between the parties and directed the filing of affidavits and specifically an affidavit from the Applicant. Further directions were made for the disclosure of the DVD of interview (upon receipt of statutory letter of consent from the Applicant), custody records concerning the Applicant together with documents signed by her while in custody and the DAR from the Court hearing on the 20 ^th of September, 2021.

14 . Despite clear Court directions no further steps have been taken in the proceedings on behalf of the Applicant and her legal representatives confirm that they have no instructions from her. The Respondent refers on affidavit to information received that the Applicant travelled to Belfast from Dublin on the 24 ^th of...