J.A. (Cameroon) v Governor of Cloverhill Prison No. 1

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 September 2017
• Neutral Citation: [2017] IEHC 609
• Docket Number: [2017 1065 SS]
• Court: High Court
• Date: 25 September 2017

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

J.A. (CAMEROON)

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

(NO.1)

[2017] IEHC 609

[2017 1065 SS]

THE HIGH COURT

Constitution – Art. 40 of the Constitution – Asylum, Immigration & Nationality – Deportation order – S. 22 of the International Protection Act 2015 – Consent to readmission to the protection process – Art. 7 of Council Directive 2005/85/EC – Assessment of non-refoulement – Abuse of asylum procedure

Facts: The applicant challenged his detention under art. 40 of the Constitution. The applicant contended that he had been unlawfully detained in the prison in circumstances where his application to the protection process under s. 22 of the International Protection Act, 2015 had been lodged, and on the same date, a flight had been booked for him to return to Cameroon under a deportation order. The applicant was arrested and detained upon his refusal to board the plane to Cameroon. The key issue arose as to whether an application for consent to be readmitted to the protection process gave rise to the right to remain in the State under art. 7 of Council Directive 2005/85/EC and whether there was a settled and continuing intention to deport the applicant.

Mr. Justice Richard Humphreys dismissed the application under art. 40 of the Constitution. The Court held that there was a continuing intention to deport the applicant. The Court observed that detention for the purposes of deportation did not become unlawful simply because an application was pending. The Court noted that the determination or assessment of refoulement was done prior to the expiry of the eight-week period and thus, the Minister was satisfied that no refoulement would arise prior to the actual deportation. The Court observed that the applicant has no locus standi as a previous application for readmission had already been rejected, and after a gap of seven years, he had made the present application, which was rejected and no right to remain arose from the second application. The Court stated that such tactics tantamounted to abuse of legal procedure.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 2017

1 The applicant arrived in Ireland from Cameroon in April, 2008 and unsuccessfully applied for asylum. A deportation order was made on 9th December, 2010. On the 11th January, 2011, the applicant failed to present to Garda National Immigration Bureau (GNIB) and evaded deportation for a period of over three years. On 10th October, 2011, while an evader, he made an application for readmission to the protection process under s. 17(7) of the Refugee Act 1996. That application was refused on 7th November, 2011. On 15th April, 2014, he presented again to GNIB and in September, 2014 he made a s. 3(11) application for revocation of the deportation order pursuant to the Immigration Act 1999. There followed an amount of correspondence which included a letter seeking residency on the 10th February, 2015 which seemed to have been part of the s. 3(11) application. On 8th September, 2016, the s. 3(11) application was refused.

2 However on 7th September, 2017, a further s. 3(11) application was made. On the 13th September, 2017, the applicant was advised that a flight had been booked for him to return, and on the same date an application was made for readmission to the protection process under s. 22 of the International Protection Act 2015. On 14th September, 2017, the applicant was arrested by Detective Sergeant Jonathan O'Brien at about 4:50 p.m. for the purpose of his deportation to Cameroon. The applicant declined to cooperate with his deportation. He spoke to his solicitor on the phone and D/Sergeant O'Brien and also then spoke to the applicant's solicitor who made reference to applications under s. 22 of the 2015 Act and s. 3(11) of the 1999 Act. D/Sergeant O'Brien contacted the GNIB who indicated there was no impediment to deportation. The applicant was conveyed to Cloverhill where he is currently in custody.

3 On the 22nd September, 2017 Creedon J. ordered an inquiry under Article 40.4 of the Constitution that came to me for substantive hearing. I have heard helpful submissions from Ms. Sinead McGrath B.L. for the Governor and Ms. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L.) for the applicant. I have been given a certificate seeking to justify the detention, signed by Assistant Governor Joseph Hernon. However there are errors in the certificate in that Assistant Governor Hernon is incorrectly described as the Governor in the body of the certificate. There is also an error in the title of the proceedings as set out in the covering document signed by the Chief State Solicitor, so without any real objection from the applicant I gave liberty to the Governor to amend the certificate and this judgment is subject to the amended certificate being produced in due course in proper form.

4 Ms. Boyle in her comprehensive and helpful submission has raised, in essence, two points. Firstly, that an application under s. 22 conveys an entitlement to remain in the State, and the associated point that the policy of the Minister in relation to applications under s. 22 of the Act is not a lawful policy. The Minister has essentially adopted the position (in a document outlining procedures for the purposes of an application for consent to readmission to the protection process) that the application does not suspend the procedures leading to deportation. Ms. Boyle's second point is that the regulations for detention of applicants are ultra viress. 5 of the Immigration Act, 1999 and by agreement of the parties I have postponed that issue to a date to be fixed in order to be dealt with separately.

5 I have also heard evidence on the first issue from D/Sergeant O'Brien and I am now dealing with that first issue...