J.A. (Cameroon) v Governor of Cloverhill Prison No. 2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] IEHC 610
• Docket Number: [2017 No. 1065 SS]
• Court: High Court
• Date: 20 October 2017

[2017] IEHC 610

THE HIGH COURT

Humphreys J.

[2017 No. 1065 SS]

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

BETWEEN

J.A. (CAMEROON)

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

(No. 2)

Constitution – Art. 40.4 of the Constitution – S. 5 of the Immigration Act 1999 – Obstruction in deportation process – Fair procedures

Facts: The applicant challenged the constitutionality of s. 5 of the Immigration Act 1999 on the ground that it had permitted administrative detention rather than the detention authorized either before or shortly after the fact by an independent judicial officer. The applicant contended that his detention was unlawful as a person arrested under s. 5 of the 1999 Act needed to be brought before an independent adjudicator.

Mr. Justice Richard Humphreys held that the detention of the applicant was lawful. The Court noted that the arrest for the purpose of detaining a person in order to remove him was not preventive detention. The Court found that if there was detention of the applicant, with the intent to deport him, his detention was valid in the absence of any impediment surrounding that detention.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of October, 2017

1 This case rises a number of constitutional issues of considerable importance, the most important perhaps being whether there are circumstances in which an applicant can challenge a statute which has previously been upheld by the Supreme Court at Bill stage.

2 By agreement the hearing was spilt into two parts. Most of the relevant facts have been outlined in my judgment on the first leg of the proceedings, J.A. v. Governor of Cloverhill Prison (No. 1) (25th September, 2017).

3 The applicant is a national of Cameroon and a failed asylum seeker, who is the subject of a deportation order on the date of 9th December, 2010. The applicant did not leave the state as required and failed to present to the Garda National Immigration Bureau (GNIB) on 11th January, 2011. He evaded deportation until 15th April, 2014. In the meantime he applied to re-enter the protection process, which application was refused on 7th November, 2011 and subsequently he applied to revoke the deportation order under s. 3(11) of the Immigration Act 1999 on 8th September, 2014. That application was refused on 8th September, 2016. More recently he lodged a further application for permission to re-enter the protection process under s. 22 of the International Projection Act 2015 on 13th September, 2017. That application has been refused by decision dated 28th September, 2017. He has also applied to revoke the deportation order yet again on the 7th September, 2017. In the course of the earlier hearing D/Sergeant Jonathan O'Brien submitted an affidavit and gave evidence. D/ Sergeant O'Brien was responsible for the enforcement of the deportation order and stated that the applicant presented at the GNIB on 13th September, 2017 when he was informed that he was due to travel on the following day and was directed to present at Balseskin Reception Centre for the purpose of that travel. The applicant did so present himself, but when asked to produce his Cameroonian passport, failed to reply. The applicant stated he was not going to Dublin airport and that he was not getting on a plane. As I will come to later, such conduct constitutes obstruction of the process of deportation in a manner that is an offence under s. 8 of the Immigration Act 1999.

4 D/Sergeant O'Brien confirmed that on the way to the Garda vehicle the applicant spoke with his solicitor by mobile phone and then refused to get into the vehicle for the purposes of this travel to the airport. That is also an offence under s. 8. D/Sergeant Jonathan O'Brien informed the applicant that if he did not cooperate with arrangements for his deportation he would be detained on foot of the deportation order to facilitate an escorted flight to Cameroon. The applicant again stated that he would not get on a plane and once more I would comment that that again is an offence under s. 8. D/Sergeant O'Brien gave evidence that the applicant was conveyed to Cloverhill prison, where he remains detained under D/Sergeant O'Brien's warrant of dentition. He also gave evidence of a continuing intention to deport the applicant, evidence which I upheld the first leg of this application. I note that the warrant of detention is headed as such and thus corrects the difficulty to which I drew attention in Sharma v. Member in Charge of Store Street Garda Station [2016] IEHC 611 where the instrument ultimately produced described itself (incorrectly in my view) as a warrant for ‘ arrest and dentition’, and I am glad that this difficulty has been corrected.

5 I have heard helpful submissions in this second module of the hearing from Ms. Rosario Boyle S.C (with Mr. Anthony Lowry B.L.) for the applicant and from Ms. Sara Moorhead (with Ms. Sinéad McGrath B.L.) for the respondent and for the Attorney General as notice party.

Can the applicant bring a constitutional challenge to s. 5 of the Immigration Act 1999 given that it was upheld by the Supreme Court at Bill stage?

6 Article 34.3.3° of the Constitution provides that ‘ No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.’ It is the latter clause that applies here because only ss. 5 and 10 of the Bill for the Illegal Immigrants (Trafficking) Act 2000 were referred to the Supreme Court. That Bill, when enacted, amended s. 5 of the Immigration Act 1999 among other provisions.

7 The learned authors of J.M. Kelly: The Irish Constitution (4th edition), comment at p. 914. that ‘ Another interesting question which does not yet appear to have surfaced is whether the rule contained in [Article 34.3.3°] continues to have application in the case of legislation which has been previously upheld under an Article 26 reference, but which has been more latterly amended by later legislation’. The question now falls for determination here. The learned authors go on to state that, referring to provisions repealed and substituted in legislation cleared under Article 26, ‘ First principles strongly suggests that these new added provisions do not enjoy the benefit of immunity from constitutional challenge’. The learned authors also comment that ‘ No attempt seems ever to have been made to circumvent the rule contained in th[e] subsection’ (p. 912), and to that extent the present application is a constitutional first.

8 I would respect agree with Hogan J. and Professor Whyte in relation to their suggestion that first principles militate against a broad interpretation of the provision. The basic point is that the Constitution is a living instrument. In A. v. Governor of Arbour Hill Prison [2006] IESC 45, Denham J. as she then was, said that ‘ … a law which has been applied as a valid law for many years may be declared to be null and void. This power of the Superior Courts is exercised in the context that neither the law nor the Constitution is frozen in 1937. The Constitution is a living instrument. Concepts are before the courts today in forms not envisaged in 1937. Principles and rights have developed over the last seventy years, from roots in national society, the European Community, and international documents.’ Indeed the ECHR itself is also a living instrument (see Tyrer v. United Kingdom (Application No. 5856/72) 25th April 1978, Series A no. 26 and subsequent jurisprudence). Were matters otherwise the Constitution would rapidly lose touch with society and would become a transient and impermanent thing. Its status as a durable framework for national society is greatly dependent on the existence of flexible modes of interpretation and contemporary readings of the Constitution so that it always speaks in the present tense and always speaks to the present living society. No one generation, even that of 1937, has all of the answers. Even Supreme Court decisions can be viewed differently by a later Supreme Court.

9 In the U.S. context, Posner J. put it with his usual helpful directness in an interview for slate. com on 24th June, 2016: ‘Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today … The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about. In short, let's not let the dead bury the living.’ And in a very insightful piece on this issue published on 21st March, 2017 in the perhaps unlikely context of cosmopolitan. com, attorney Jill Filipovic commented that ‘ A Constitution that doesn't reflect changing norms and realities is a Constitution that would eventually prove itself ineffectual and irrelevant. Had the framers of the Constitution created a rigid, dead document, the American project may very well have failed. The judicial system is one crucial piece in our balance of powers, and if it's a neutered body only capable of addressing the country like it's still 1789 and we live in a country of farmers and slaveholders, it will simply be incapable of carrying out its role checking and balancing the modernized legislative and executive branches.’

10 Constitutional law cannot be frozen arbitrarily for all time as at...