H.H. v The Governor of Cloverhill Prison
|Mr. Justice Bernard Barton
|02 August 2019
| IEHC 653
|[2019 / 918 SS.]
|02 August 2019
 IEHC 653
THE HIGH COURT
[2019 / 918 SS.]
Unlawful detention – Deportation – Proportionality – Applicant seeking an enquiry under Article 40.4 of the Constitution into the lawfulness of his detention – Whether the arrest and detention of the applicant was unlawful
Facts: The applicant applied to the High Court for an enquiry under Article 40.4 of the Constitution into the lawfulness of his detention in Cloverhill Prison, Dublin. Having heard what was urged by counsel and considered the grounding affidavit, Barton J acceded to the application and made an order of habeas corpus. The applicant was brought to Court the following day and a warrant for his detention, dated 27th June, 2019, produced. The applicant submitted that, in circumstances where, apart from the failure to leave the State by the due date, there was no evidence of evasion or of an intention to evade deportation, where there had been diligent compliance with the requirements of the deportation notice and where no arrangements for deportation had been made or were in the process of being made at the material time, his arrest and detention was a grossly disproportionate, unwarranted and unnecessary exercise of executive power for the purposes of effecting his deportation from the State the misuse of which amounted to an unlawful interference with his constitutional right to liberty.
Held by Barton J that the exercise of the power of arrest and detention in the circumstances was neither grossly disproportionate, excessive or unnecessary and consequently was not a misuse of power such as to render its exercise an unlawful interference with the applicant’s constitutional right to liberty, on the contrary his breach of the terms of the order rendered him liable to arrest and detention for the purposes of implementing the order at any time.
Barton J held that the arrest and detention of the applicant was lawful and that the application would be refused.
This matter came before the Court by way of an ex parte application for an enquiry under Article 40.4 of the Constitution into the lawfulness of the Applicant's detention in Cloverhill Prison, Dublin. Having heard what was urged by Counsel and considered the grounding affidavit, I acceded to the application and made an order of Habeas Corpus. The Applicant was brought to Court the following day and a warrant for his detention, dated 27th June, 2019, produced.
The Applicant is a citizen of Bangladesh. He arrived in the State from the United Kingdom. On the 1st February 2013, shortly after his arrival, he claimed ‘International Protection’. Pursuant to the provisions of the ‘Dublin Regulation’ it was determined that the United Kingdom was responsible for the Applicant, accordingly, the Minister for Justice (the Minister) made an order, dated the 10th May 2013, for his transfer back to that jurisdiction. He denies any knowledge of the Order despite the Respondent's assertion that it was served personally at what was then his home address in the State.
As it transpired the time for execution of the order expired on the 21st September, 2014. Consequently, the application for protection fell to be determined by the State. Thereafter the Applicant applied to the Minister seeking declarations of refugee status, subsidiary protection and permission to remain; his application was processed in the ordinary way and ultimately refused. Subsequently, on the 1st February, 2019, the Minister made a deportation order, notice of the making of which was served personally on the 22nd February; a copy thereof was also served on his solicitor.
The notice was in the form prescribed by the International Protection Act 2015 (Deportation) Regulations 2016, S.I. 668 of 2016 (the 2016 Regulations) which contained a number of requirements one of which was that he leave the State by the 24th March 2019, failing which he was required to present himself to the office of the Garda National Immigration Bureau, Burgh Quay, Dublin, at 2pm on Wednesday 27th March, for the purpose of making arrangements for his removal from the State. The Applicant was instructed to bring with him and produce certain travel documents, namely, a passport, travel tickets or other documents that might facilitate the process of removal. It is accepted that the Minister has been in possession of the Applicant's passport for this purpose since early in the process though precisely when it was handed over was not established. It seems likely, however, to have been at the first meeting arranged for March, 27th, at which the Applicant attended.
The deportation notice contained a number of other requirements, which included the necessity to co-operate in any way necessary to enable a member of An Garda Síochana or an immigration officer obtain any travel document, passport, travel ticket or other documents required for the purposes of removal and to continue to reside at the address specified therein. The requirements were accompanied by a warning. Failure to leave the State by the 24th March 2019 would constitute a failure to comply with the terms of the deportation order and would render the Applicant liable to arrest and detention without warrant pursuant to section 5(1) of the Immigration Act 1999, as inserted by the International Protection Act 2015, (the Act). The notice provided for other matters referred to in s. 3(9) of the Act which are not germane to these proceedings. Finally, the Applicant was put on notice that when “satisfactory documentation has been organised” arrangements would be put into place to affect his removal from the State.
On 22nd March 2019, the Applicant applied to the Minister for an order revoking the deportation order. A determination on the application by the Minister has yet to be made; the application is still pending. The Applicant presented himself to the Bureau office on the 27th March 2019 as instructed; however, no arrangements had been made for his deportation nor were any such discussed. Instead he was instructed to return to the office on the 9th May 2019 for the same purpose. He complied but found the situation regarding removal arrangements as before. Once again he was instructed to return to the office, this time on the 27th June 2019.
When the Applicant presented himself at the Bureau office on that date he was met with the same situation as previously, no arrangements for his removal had been made nor was there any discussion regarding same. However, Garda Dillon, who was aware of the terms of the order and the date on which the Applicant should have left the State, arrested him under s. 5 (1)(a) of the Act. Following the arrest he was taken by Garda Dillon to Cloverhill Prison, a prescribed place of detention, where he has been detained ever since. The sole ground for the arrest and detention appears on the face of the warrant, namely that Garda Dillon with reasonable cause suspected the Applicant, against whom a deportation order was in force, “(a) has failed to leave the State within the time specified in the Order”.
The Irish Naturalisation and Immigration Service (INIS) first sought removal options for the Applicant's deportation from travel agents on the 4th July, 2019; further enquiries were made on...
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