Ivanov v The Minister for Justice, Equality and Law Reform and the Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 29 September 2003
• Neutral Citation: 2003 WJSC-HC 6448
• Court: High Court
• Date: 29 September 2003

2003 WJSC-HC 6448

THE HIGH COURT

RECORD NO. 1530 S.S./2003

IVANOV v. MIN FOR JUSTICE & GOVERNOR OF CLOVERHILL PRISON

IN THE MATTER OF AN APPLICATION PURSUANT TO

ARTICLE 40 OF THE CONSTITUTION OF IRELAND

BETWEEN/

ANDRE IVANOV

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENTS

Synopsis:

CONSTITUTION

Detention

Inquiry under Constitution - Liberty - Legality - Inquiry into lawfulness of detention - Whether arresting Garda has reasonable suspicion that applicant is person against whom deportation order in force - Bunreacht na hÉireann 1937, Article 40.4.2 (2003/1530SS - Herbert J - 29/9/2003)

Ivanov v Minister for Justice, Equality and Law Reform

section 5(1) of the Immigration Act 1999 provides that where a garda, with reasonable cause, suspects that a person against whom a deportation order is in force has failed to comply with any provision of the order, he may arrest such person and detain him in a prescribed place. A deportation had been made on the 22nd March, 2001, pursuant to section 3 of the Act of 1999 requiring a Romanian national, Andrei Ivanov, to leave and remain out of the state. Doru Bejan, a Romanian national with the same date of birth as Andrei Ivanov, was arrested on foot of the said deportation order of the 22nd March, 2001 and lodged in Cloverhill Prison after the arresting garda had carried out a cross-referencing check and was satisfied that Doru Bejan and Andrei Ivanov were the same person from an inspection of photographs available to him on the computer system of the Garda National Immigration Bureau. The applicant challenged the legality of his detention on the basis that the arresting garda had no reasonable cause to suspect that he was the same person as Andrei Ivanov against whom a deportation order was in force.

Held by Herbert J in refusing the application that the applicant was being lawfully detained in accordance with the provisions of section 5(1) of the Immigration Act 1999. A Garda did not have to obtain an opinion of an expert identifying material similarities in photographic images before he could have reasonable cause to suspect that the subjects in those photographs were the same person. Accordingly, the arresting Garda had reasonable cause to suspect that Doru Bejan was a person, namely Andrei Ivanov, against whom a deportation order was in force.

1 Judgment of Mr. Justice Herbert delivered the 29th day of September, 2003.

2 On the 17 ^th day of January, 2002 Mr. Doru Bejan, a Romanian National, entered this State at Dublin Airport. He held a Romanian passport No. 01874069, valid until the 16 ^th April, 2006. It was stamped with an Irish Entry Visa, issued at Bucharest on the 20 ^th December, 2001. This Visa entitled Mr. Bejan to remain in the State until the 27 ^th April, 2002 and, provided a Work Permit was obtained, to seek employment of the type specified in the Visa. Two Re-Entry Visas were issued to Mr. Bejan at Dublin on the 2 ^nd August, 2002 and the 8 ^th November, 2002 respectively. The latter Visa extended his right to remain in the State until the 31 ^st October, 2003.

3 Two Work Permits were issued in respect of Doru Bejan, authorising him to work in the State as an Industrial Cleaner for the periods 1 ^st November, 2001 to 31 ^st October, 2002 and 1 ^st November 2002 to 31 ^st October, 2003. These Work Permits were issued on the 1 ^st November, 2001 and the 8 ^thNovember, 2002 to Ailesbury Contract Cleaning Ltd. In the Passport and in these Work Permits, the date of birth of Doru Bejan is given as the 2 ^nd July, 1969. In the renewal application for a Work Permit to Employ a Non-E.E.A. National, the address given for Doru Bejan was 626, South Circular Road, Dublin, 8. This was also the address given on the application form for the Re-Entry Visa completed on the 8 ^th November, 2002. The Court was informed at the hearing of this application by Counsel for the Applicant, and this was not disputed on behalf of the Respondents that Doru Bejan had resided at that address since his arrival in the State and that he lived there with his wife and seven year old daughter.

4 On the 14 ^th July, 2003, Doru Bejan appeared before a District Judge charged with a number of public order type offences alleged to have been committed in the Rialto Area of Dublin on the 13 ^thJuly, 2003. The matter came to the attention of Garda James Doyle of the Garda National Immigration Bureau. At paragraph 5 of an Affidavit sworn by him on the 24 ^th September, 2003, on behalf of the Respondents, Garda Doyle states as follows:-

"I had carried out a check on the computer system at the G[arda] N[ational] I[mmigration] B[ureau] and had found the application and photograph of the Applicant by seeking to cross-refer persons with the same...