Jin Liang Li v Governor of Clover Hill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 28 November 2012
• Neutral Citation: [2012] IEHC 493
• Court: High Court
• Docket Number: [2012
• Date: 28 November 2012

[2012] IEHC 493

THE HIGH COURT

[No. 2227SS/2012]

Jin v Governor of Clover Hill Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN/

JIN LIANG LI

APPLICANT

AND

GOVERNOR OF CLOVER HILL PRISON

RESPONDENT

REFUGEE ACT 1996 S9(8)

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 S5(1)

REFUGEE ACT 1996 S9(8)(A)

REFUGEE ACT 1996 S9(10)(A)

CONSTITUTION ART 40.4.1

REFUGEE ACT 1996 S9(10)(B)(i)

IMMIGRATION ACT 2003 S7(C)

ADEJEGBA v DEERY UNREP DUNNE 6.4.2006 (EX TEMPORE)

IMMIGRATION ACT 1999 S5(6)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(B)

ARRA v GOVERNOR OF CLOVERHILL & ORS PRISON UNREP RYAN 26.1.2005 2005/2/383 2005 IEHC 12

REFUGEE ACT 1996 S9(10)(C)

REFUGEE ACT 1996 S10(4)

KING v AG & DPP 1981 IR 233

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

IMMIGRATION ACT 1999 S5

IMMIGRATION ACT 1999 S5(6)

REFUGEE ACT 1996 S9(10)

BOURNE (INSPECTOR OF TAXES) v NORWICH CREMATORIUM LTD 1967 1 WLR 691 1967 2 AER 576

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

ORFANOPOULOS v LAND BADEN-WURTTEMBERG 2004 ECR I-5257 2005 1 CMLR 18

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 45(3)

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 39(3)

EZENWAKA v MIN FOR JUSTICE UNREP HOGAN 21.7.2011 2011/21/5319 2011 IEHC 328

IMMIGRATION ACT 2004 S4

R (FARRAKHAN) v SECRETARY OF STATE FOR THE HOME DEPT 2002 QB 1391 2002 3 WLR 481 2002 4 AER 289

REFUGEE ACT 1996 S9(8)(B)

BENNETTS v GOVERNOR OF CLOVERHILL PRISON UNREP BIRMINGHAM 20.6.2008 2008/3/541 2008 IEHC 227

DONG v GOVEROR OF CLOVERHILL PRISON UNREP 13.11.2012 (EX TEMPORE)

KADRI v GOVERNOR OF CLOVERHILL PRISON 2012 2 ILRM 392 2012 IESC 27

A (X) (AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.10.2011 2011/1/192 2011 IEHC 397

DAMACHE v DPP & ORS UNREP SUPREME 23.2.2012 2012 IESC 11

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP HOGAN 6.11.2012 2012 IEHC 492

IMMIGRATION LAW

Arrest and detention

Lawfulness - Asylum seeker - Threat to public order - Principle of noscitur a sociis - Statutory interpretation - Whether arrest and detention lawful - Arra v Governor of Cloverhill Prison [2005] IEHC 12, (Unrep, Ryan J, 26/1/2005) approved; The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 and King v The Attorney General [1981] IR 233 applied - Refugee Act 1996 (No 17), ss 9 and 10 - Immigration Act 1999 (No 22), s 5 - Immigration Act 2004 (No 1), s 4 - Constitution of Ireland 1937, Article 40.4 - Treaty on the Functioning of the European Union, article. 45 - Release directed (2012/2227SS - Hogan J - 28/11/2012) [2012] IEHC 493

Li v Governor of Cloverhill Prison

Facts: The applicant was a Chinese national who had arrived in Ireland some 13 years previous and had long since overstayed his visa entitlement to remain. The applicant had failed to cooperate with immigration authorities and actively frustrated their attempts on a number of occasions. In September 2012, the immigration authorities had discovered that the applicant had a valid passport and so were able to give effect to a previous deportation order. He was arrested under s. 5(1) of the Immigration Act 1999 with the intention of deporting him immediately, however asylum was claimed before that could be realised. He was subsequently arrested under s. 9(8)(a) of the Refugee Act 1996 instead in that he posed a threat to public order in the state. A court order for detention was subsequently obtained pursuant to s. 9(10)(a) of the 1996 Act.

It was the applicant's argument that his detention was unlawful. He was being civilly detained without sufficient basis to justify disregard for his right to personal liberty guaranteed under Article 40.4.1 of the Irish Constitution. Against this, it was argued that the applicant's detention could be justified in light of his previous behaviour and the safeguards that protected him from abuse of the detention procedure. For example, his asylum application would be dealt with as a matter of priority under s. 10(4) of the 1996 Act.

Held by Hogan J that the concept of preventative detention, of which this was such a case, should be considered as an exceptional measure. The applicant had not been criminal charged and was only being detained in connection with his asylum application. It was also right to say that just because a deportation order had found the applicant to have no right to stay in the state, that did not justify the state detaining the applicant in itself. The definition of "public order" was examined by the court. It was found that in the legislation, s. 9(8)(a) of the 1996 Act described how detention was justified where there was a threat to "national security or public order". Public order, which would usually have a wider meaning, was seen to have a much narrower definition due to its connection with "national security". Consideration was also given to s. 9(8)(b) of the 1996 Act which allowed preventative detention in a case where an asylum seeker had committed a serious non-political crime outside the state. It was considered strange then that the applicant could be detained because of the possibility of him committing relatively minor offences in the future such as frustrating the immigration process.

It was held that the applicant must not be detained. He had clearly flouted the immigration process but to allow civil detention for anything but the most extreme circumstances would be to have undue regard for Article 40.4.1 of the Irish Constitution. In the circumstances, a narrow definition of public order was the correct interpretation of s. 9(8)(a) of the Refugee Act 1996, a definition that did not apply to the applicant's conduct.

Applicant's release from detention directed under Article 40.4.2 of the Irish Constitution

1 1. Where an illegal immigrant persistently flouts the immigration rules and fails to co-operate with the authorities, does that person pose a threat to "public order" in the sense in which that term is used by s. 9(8) of the Refugee Act 1996 ("the 1996 Act") so as to enable his arrest on this ground and so as to justify his subsequent detention on this basis by order of the District Court? That, in essence, is the question which arises in this application pursuant to Article 40.4.2 of the Constitution. For the reasons I shall shortly set out, I am satisfied that such a person does not come within the scope of s. 9(8) of the 1996 Act merely because of non-compliance with immigration law. Since this, however, was essentially the basis on which the applicant was first arrested and thereafter detained, I shall therefore order the release of the applicant as soon as this Court presently adjourns.

Background facts

2 2. The applicant is a Chinese national who has resided in the State for some thirteen years. It is not in dispute but that he has long since overstayed his visa entitlement and that he has been working here illegally. It is also true that he took active steps to frustrate his deportation, not least when in January, 2010 he stated to Chinese Embassy staff during a formal interview that he would not return to China. This meant that the Embassy would not issue fresh travel documents-the passport in the possession of the Garda authorities having expired-and this in turn meant that effect could not be given to an earlier deportation order. Mr. Jin had in fact been arrested in early January, 2010 pursuant to this earlier deportation order, but he was released after 53 days in custody when it became clear that he could not actually be deported due to the absence of appropriate travel document. It subsequently emerged in September, 2012 that he had another valid Chinese passport which had been issued in April, 2007 and of which the Irish authorities had been previously unaware.

3 3. The applicant was accordingly arrested on 20 ^th November, 2012, pursuant to s. 5(1) of the Immigration Act 1999. The validity of this initial arrest would not appear to be in dispute. As, however, arrangements were being made for him to be taken by airplane from Dublin to Amsterdam and onwards to Beijing, the applicant applied for asylum. Detective Garda O Sommachain then released the applicant from his detention under s. 5(1) of the 1999 Act and arrested him pursuant to s. 9(8)(a) of the 1996 Act.

4 4. The applicant was then brought before the District Court and that Court made an order pursuant to s. 9(10)(a) of the 1996 Act detaining him until today, 28 ^th November, 2012, on the ground he posed a threat to public order in the State. It is accepted that the validity of the applicant's present detention rests on this order.

5 5. Before considering the relevant statutory provisions in more detail, it is worth observing that the applicant is currently neither charged with-still less convicted of-any offence. His current detention is a form of civil detention in aid of the asylum process and, but for the fact that he is applying for asylum, there would be no basis at all for detaining him in custody. Unless the constitutional protection of the right to personal liberty in Article 40.4.1 is to be reduced to a mere platitude, then it is obvious that any orders of this kind call for a high degree of judicial supervision. This is especially so given that the applicant can now be detained on this basis by the District Court for a maximum of 21 days: see s. 9(10)(b)(i) of the 1996 Act (as amended by s. 7(c) of the Immigration Act 2003).

6 6. While it is true that as Dunne J. observed in Adejegba v. Deery, High Court, 6 ^th April, 2006, the District Judge must exercise his or her functions "judicially and carefully having regard to the serious consequences involved in an order made under this section", the fact remains...