I (F) v Governor of Cloverhill Prison (Maher)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 October 2015
• Neutral Citation: [2015] IEHC 639
• Court: High Court
• Date: 21 October 2015

[2015] IEHC 639

THE HIGH COURT

[No. 1615 S.S./2015]

I (F) v Governor of Cloverhill Prison (Maher)

No Redaction Needed

IN THE MATTER OF AN INQUIRY PUSUANT TO ARTICLE 40, SECTION 4 OF THE CONSTITUTION

BETWEEN

F. I.

PLAINTIFF

AND

RONAN MAHER ACTING AS THE GOVERNOR OF CLOVERHILL PRISON

DEFENDANT

Asylum, Immigration & Nationality - European Communities (Free Movement of Persons) (No.2) (Regulations 2006 – S. 17 (7) of the Refugee Act 1996 - Art. 40 of the Constitution – S. 5(5) of the Immigration Act 2003 – Art.7 of the Procedures Directive (Council Directive 2005/85/EC)

Facts: Following the application of the applicant for consent to make a second asylum application after he was apprehended after being refused permission to apply for residence in the State of Ireland, the applicant now sought an order to the effect that his detention was unlawful as the necessary intent to deport was absent qua the state.

Mr. Justice Richard Humphreys granted an order for the release of the applicant. The Court held that s. 5 (5) of the Immigration Act 2003 made it clear that detention under that section could only be for the purposes of detention and thus, a settled intention to deport could be inferred. The Court found that since the making of an application for consent to reapply for asylum had the effect of complicating the process of removal of the applicant, there must be a clear evidence that the State at all times intended to deport the applicant and thus, there was a need to consider any potential suspensive effect of a re-application as mentioned under the Procedures Directive (Council Directive 2005/85/EC), which had been missing in the present case.

1 1. It is accepted by both sides that the facts are broadly as set out in the affidavit of Mary Trayers of 9 ^th October, 2015. These have been supplemented with a number of agreed further facts. The applicant is a national of Pakistan, who arrived in the state on 15 ^th February, 2005. He married an EU national on 6 ^th January, 2006. Subsequently his spouse left the country following marital difficulties in or around June 2009. Ms Trayers' affidavit states that the Minister wrote to the applicant on 9 ^th July, 2015 to inform him of a decision to make a removal order, although the text of this order has not been put in evidence.

The first Article 40 application

2 2. He then applied for asylum and there followed then a first Article 40 application by the applicant which seems to have been compromised in his favour. This was followed on 1 ^st August, 2014 by a withdrawal of the asylum claim and he then applied for a visa or permission to land in Ireland.

3 3. The applicant was notified of the formal refusal of his asylum claim on 8 ^th December, 2014. He was given temporary permission to remain in the state until in or around 9 ^th September, 2015. He applied for residence under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 which was refused on 4 ^th September, 2015 and currently does not have permission to be in the State.

4 4. He seems then thereafter to have gone to Northern Ireland and was apprehended on the way back from there on 25 ^th September, 2015. He was arrested on that date by D/Garda Patrick Conroy and detained initially in Dundalk Garda Station and subsequently in Cloverhill Prison.

The second Article 40 application

5 5. A second Article 40 application was then moved in the High Court but was withdrawn on 2 ^nd October, 2015 on the basis of the Minister's undertaking to carry out a consideration of whether refoulement would arise in the event of the applicant's removal from the State. Subsequent to that, on 6 ^th October, 2015 the applicant submitted an application under s. 17(7) of the Refugee Act 1996 to the Minister for Justice and Equality for her consent to make a second asylum application.

The third Article 40 application

6 6. The applicant then applied by way of a third Article 40 application on 9 ^th October, 2015 essentially on the basis that the application of 6 ^th October for consent to make a second asylum application rendered his detention unlawful because it removed the necessary continuing intention to deport that was required to underlie a valid detention.

7 7. Mr. Anthony Moore B.L. for the respondent governor has handed in an unsigned decision dated 14 ^th October, 2015 refusing the application under section 17(7). I have not seen the final decision and I am not in a position to afford any particular evidential status to the unsigned decision which has simply been handed in and not of course proved in evidence and as I understood matters is not admitted by the applicant. But in any event I do not believe there is anything that would turn on the matter because essentially this application revolves around the lawfulness or otherwise of the applicant's detention subsequent to the application for re-admission to the asylum process on 6 ^th October, 2015. The resolution of the issue at a later date (by the rejection of that application, even...