Izmailovic & Anor -v- Commissioner of an Garda Siochana & Ors, [2011] IEHC 32 (2011)

Docket Number:2011 51 JR
Party Name:Izmailovic & Anor, Commissioner of an Garda Siochana & Ors
Judge:Hogan J.

THE HIGH COURTIN THE MATTER OF AN APPLICATIONUNDER ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND2011 51 JRBETWEENJUSTINIA IZMAILOVIC AND MAHMOUD ELMORSY ADSAPPLICANTS ANDCOMMISSIONER OF AN GARDA SIOCHANA, MINISTER FORJUSTICE, EQUALITY AND LAW REFORM, IRELAND ANDTHE ATTORNEY GENERALRESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on the 31st day of January, 2011 1. This application under Article 40.4.2 of the Constitution raises issues of very considerable public importance. As we shall presently see, these are difficult issues of some novelty involving an overlap of aspects of European law, constitutional law, family law, immigration law and the law of arrest.2. The first applicant is a Lithuanian national who is a self employed painting and decorating contractor. She apparently met the second applicant over the internet in early 2009. She came to Ireland in May 2010. Some time after her arrival Ms. Izmailovic registered a business name with the Companies Registration Office and she also registered with the Revenue Commissioners for tax purposes.3. The second applicant is an Egyptian national who unsuccessfully applied for asylum in 2008. He was subsequently made the subject of a deportation order which was issued on 5th November, 2010, by the Minister for Justice, Equality and Law Reform. He then failed to present himself as required at the Garda National Immigration Bureau, 13/14 Burgh Quay, Dublin 2 on 2nd December, 2010, whereupon he was then classified as an evader. It is plain that at present he has no entitlement to remain in the State and that he is here illegally.4. The applicants maintain that they have been living together at an address in Dublin since shortly after Ms. Izmailovic’s arrival in the State in May, 2010. They apparently rented the premises for a twelve month period for €550 per month. In her affidavit Ms. Izmailovic has exhibited utility bills which appear to show that the parties were both living at this address in the autumn 2010. She also maintains that the parties went through a religious ceremony of marriage in a mosque in Clanbrassil Street, Dublin 8 on the 12th July, 2010, although it is not contended that this religious marriage has in itself any legal significance.5. What is not in dispute is that the parties gave notice on 12th October, 2010, to the Civil Registration Office in Cavan of an intended marriage between them on 12th January, 2011 at 2.30pm. This application was duly acknowledged by the Registrar, Ms. Annemarie McQuaid, and it was confirmed that the necessary documentation was in order.6. On 12th January, 2011, the parties travelled to Cavan with some friends for the marriage ceremony. However, shortly before the marriage solemnisation was about to take place, two officers from the Garda National Immigration Bureau arrived on the scene. According to the affidavit of Detective Garda Moran, he first spoke with Ms. McQuaid to explain the purpose of their visit. Detective Garda Moran then handed over a letter of objection to the proposed marriage from his supervisor, Detective Chief Superintendent O’Driscoll. I will examine presently the terms of that letter and its potential legal significance.7. Detective Garda Moran then spoke to the applicants and informed them that an objection to the proposed marriage had been lodged by Detective Chief Superintendent O’Driscoll on the grounds that it was a marriage of convenience and that the matter was being investigated by the Garda National Immigration Bureau.8. Detective Garda Moran then demanded production of Mr. Ads’ identity documents and he produced a valid Egyptian passport. He then arrested Mr. Ads pursuant to s. 5(1) of the Immigration Act 1999 (“the 1999 Act”) on the grounds that he intended to avoid deportation. Detective Garda Gaine took the details of the seven other persons present, six of whom were Egyptian and one was Syrian. At that point Detective Garda Moran and Detective Garda Gaine left the Registration Office and conveyed Mr. Ads to Cloverhill Prison where he is presently detained. Due to the actions of the Gardai the proposed marriage did not, of course, take place. It is also clear from the affidavits filed on behalf of the respondents that the Gardai were of the further view that the Registrar was, in any event, precluded by s. 58 of the 2004 Act from proceeding with the marriage due to the fact that a letter of objection had been lodged some minutes before the ceremony was due to take place.9. On 21st January, 2011, an application was made to me ex parte for an injunction. Although the proceedings were in form expressed to be judicial review proceedings, I took the view that as they were directed in essence towards challenging the validity of Mr. Ads’ current detention they should, in substance, be treated as an application under Article 40.4.2 of the Constitution. I accordingly directed an inquiry into the legality of that detention. I further directed required that Mr. Ads be produced before me and that the detainer certify in writing the grounds for the detention. In addition to the affidavits sworn by Ms. Izmailovic, the arresting Gardai and Mr. Patrick Power (from the Department of Justice, Equality and Law Reform), Detective Chief Superintendent O’Driscoll also gave oral evidence at the hearing before me.The legality of the arrest10. The first issue which directly arises is whether the arrest was a lawful one. The relevant power of arrest is contained in s. 5(1) of the 1999 Act which provides:“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 has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place.”11. There is no doubt but that the Gardai were in principle entitled to arrest Mr. Ads. He was, after all, a person who had evaded our immigration rules. He had no legal entitlement to be present in the State and he was a person in respect of whom a deportation order was in force. But it is clear that this statutory power of arrest, like all other statutory powers, must be exercised in conformity with basic East Donegal principles (East Donegal Co-Operative Ltd. v. Attorney General [1970] I.R. 317). This means that these powers must be exercised in a reasonable fashion and for the purposes thereby conferred by law.12. Without wishing to place any a priori constraints on the powers of arresting Gardai, it nonetheless seems to me that the arrest of a person at a registry office just immediately prior to their marriage is one which calls for a high degree of justification. This is especially so when it is clear that one of the motives of the arrest was to ensure that the marriage did not take place. In a free society where the institution of marriage is constitutionally protected (Article 41.3.1), the courts must be especially astute to ensure that agents of the State do not seek to prevent what would otherwise be a lawful marriage, at least without compelling justification.13. It is, of course, clear that at all material times the Gardaí wished to arrest Mr. Ads because there was a valid deportation order in place. It could not be said that the issue of the evasion of the deportation order was simply a pretext or some form of colourable device for the arrest as happened in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. Had, for example, Mr. Ads been arrested under s. 5 of the 1999 Act some date after his failure to present to the Garda National Immigration Bureau in early December, 2010 following a chance encounter on a public street, such an arrest would - in principle, at any rate - have been perfectly lawful.14. This, however, is not what actually occurred. While it plain is that the Gardaí independently wished to arrest Mr. Ads for evasion of the deportation order, it is equally clear that the principal motive for the arrest of Mr. Ads at that particular time and place was to ensure that the marriage to Ms. Izmailovic did not take place.15. Thus, when Detective Chief Superintendent O’Driscoll was asked by Ms. Carroll, counsel for the respondents, why his officers did not permit the marriage to be concluded as it was a relatively short ceremony, the following exchange took place:16. Q. “[Ms. Carroll] Now it's been suggested in Ms. Izmailovic's affidavit at paragraph 14 she says "I state the civil marriage ceremony performed by officers of the notice party is very brief and there is no reason why the respondent could not have waited until after the ceremony" and it has been said by Mr Ó Maolchalain [counsel for the applicants] that it spoiled what should have been a very happy day. Could you not have let the marriage go ahead?...”17. A. “Well it was I that made the objection and the document was merely served by somebody else, but from my perspective the problem which exists in relation to marriages which are suspected to being entered only for the purpose of obtaining EU treaty rights is one which has exercised government and one which our Minister or the former Minister for Justice and Law Reform has raised concerns about at an EU level. I'm acutely aware of the serious nature of the problem concerned….I think I'm obliged where I have suspicions that marriages are suspected as being bogus or being entered into solely for the purpose of obtaining EU Treaty rights [to inform] the registrar of marriage and letting the appropriate registrar know that I'm conducting an investigation. It would seem to me that it would be irresponsible for me knowing that an order has issued for somebody to be arrested to be removed from the State and suspecting that that person may be taking particular action to prevent that from taking place by way of entering a marriage...

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