Kadri v The Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Mr. Justice Clarke,Mr. Justice MacMenamin
• Judgment Date: 10 May 2012
• Neutral Citation: [2012] IESC 27
• Court: Supreme Court
• Date: 10 May 2012

Kadri v Governor of Wheatfield Prison

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN

NAZIH KADRI

APPLICANT / APPELLANT

AND

THE GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

[2012] IESC 27

Fennelly J.

Clarke J.

MacMenamin J.

Record No: 159/2012

THE SUPREME COURT

IMMIGRATION LAW

Deportation

Constitution - Legality of detention - Statutory interpretation - Breach of detention order - Maximum aggregate statutory detention period of eight weeks - Whether fresh incident of breach of deportation order could give rise to commencement of second eight week period - Whether statute to be interpreted literally - Whether intent of Oireachtas clear - Stare decisis - Whether court could depart from previous decisions - Notification of detention - Whether notification of detention defective due to failure to specify date of expiry of eight week period - Ejerenwa v Governor of Cloverhill Prison [2011] IESC 41, (Unrep, SC, 28/10/11) applied - Irish Trust Bank v Central Bank of Ireland [1976- 77] ILRM 50; In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; RO v Minister for Justice (Unrep, ex tempore, Smyth J, 11/7/2002); Gmemibade v Minister for Justice (Unrep, ex tempore, Finnegan J, 30/11/2005); Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005); Yu v Minister for Justice (Unrep, ex tempore, MacMenamin J, 31/1/2006); Brady v DPP [2010] IEHC 231, (Unrep, Kearns P, 23/4/2010); Moorview Developments Ltd v First Active plc [2010] IEHC 275, (Unrep, Clarke J, 9/7/2010) and BMJL v Minister for Justice [2012] IEHC 74, (Unrep, Cross J, 14/2/2012) considered - Okorafor v Governor of Cloverhill Prison (Unrep, ex tempore, SC, 10/10/2003) distinguished - Immigration Act 1999 (No 22), ss 3 and 5 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 10 - Immigration Act 2003 (No 26), s 5 - Interpretation Act 2005 (No 23), s 5 - Constitution of Ireland 1937, Article 40.4.2 - Appeal allowed; release ordered (2012/159 - SC - 10/5/2012) [2012] IESC 27

Kadri v Governor of Wheatfield Prison

Facts Section 5 (1) of the Immigration Act 1999, as amended, provides that:- "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 (a) has failed to comply with any provision of the order or with a requirement in a notice under section 3 (3) (b) (ii), …or (d) intends to avoid removal from the State, he or she may arrest him or her without warrant and detain him or her in a prescribed place." Section 5(6) (a) of the Act of 1999 provides that "a person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate." The respondent had certified that the appellant was being detained in custody on foot of a notification of detention dated the 29th March 2012 pursuant to s. 5(1) of the Act of 1999. That notification followed on an earlier such notification of the 8th February 2012 which had not been enforced due to the appellant's behaviour in violently resisting his removal from the State. The High Court conducted an enquiry in accordance with Article 40 of the Constitution. The appellant's complaint was that the total period of his detention, when counted from the 8th February 2012, by that date exceeded the aggregate period of 8 weeks permitted by s. 5(6)(a) of the Act of 1999. The High Court held that the appellant's detention was lawful because he had committed new or fresh breaches of the deportation order which was in force against him showing that he intended to avoid removal from the State. This gave rise to a power to make a new arrest and to issue a new detention notification. He appealed to the Supreme Court, arguing that for the time for detention to commence again there had to be an entirely fresh ground, a "break period", to give rise to a renewed basis for detention, as opposed to new facts or events arising during the eight week period of that detention.

Held by the Supreme Court (Mr. Justice Fennelly) in ordering the release of the appellant from custody in accordance with Article 40.4.2 of the Constitution, that section 5(6) of the Act of 1999 prohibited detention for any single period of more than eight weeks as well as multiple detentions for periods of less than eight weeks, where the total period exceeded eight weeks. Okorafor v Governor of Cloverhill Prison (Unreported, Supreme Court, 10th October 2003) distinguished.

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 S5(1)

CONSTITUTION ART 40

IMMIGRATION ACT 1999 S5(6)(A)

IMMIGRATION ACT 1999 S3(3)(B)(ii)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(9)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10(B)

CONSTITUTION ART 26

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

EJERENWA v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41

IMMIGRATION ACT 2003 S5(2)

GMEMIBADE v MIN FOR JUSTICE UNREP FINNEGAN 30.11.2005 (EX TEMPORE)

YU v MIN FOR JUSTICE UNREP MACMENAMIN 31.1.2006 (EX TEMPORE)

OKOROAFOR v GOVERNOR OF CLOVERHILL PRISON & ORS UNREP HERBERT 30.9.2003 2003/43/10479

IMMIGRATION ACT 1999 S5

IMMIGRATION ACT 1999 S5(6)

OKOROAFOR v GOVERNOR OF CLOVERHILL PRISON & ORS UNREP SUPREME 10.10.2003 2003/43/10489

INTERPRETATION ACT 2005 S5

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

BRADY v DPP UNREP KEARNS 23.4.2010 2010/5/1016 2010 IEHC 231

L (BMJ) & ORS v MIN FOR JUSTICE & ORS UNREP CROSS 14.2.2012 2012 IEHC 74

INTERPRETATION ACT 2005 S5(1)

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 9.7.2010 2010/37/9346 2010 IEHC 275

O (R) v MIN FOR JUSTICE UNREP SMYTH 11.7.2002 (EX TEMPORE)

1 1. The Court on Friday 27 ^th April 2012 ordered the release of the appellant from custody in accordance with Article 40, section 4. 2° of the Constitution. In this judgment I give the reasons for that decision.

2 2. On 11 ^th April, the High Court (Birmingham J) directed an enquiry into the lawfulness of the detention of the appellant. The respondent certified that the appellant was being detained in custody on foot of a notification of detention dated 29 ^th March 2012 made by Detective Garda Ronan O'Halloran, a member of the Garda National Immigration Bureau (GNIB) pursuant to s. 5(1) of the Immigration Act, 1999. That Notification followed on an earlier such notification of 8 ^th February 2012.

3 3. On 13 ^th April Birmingham J conducted an enquiry in accordance with Article 40. The appellant's complaint was that the total period of his detention, when counted from 8 ^th February 2012, by that date exceeded the aggregate period of 8 weeks permitted by s. 5(6)(a) of the Act of 1999.

4 4. The learned judge referred to a number of earlier High Court decisions on the interpretation and application of that section, which he considered to be binding on him. He also referred to one decision of this Court. He held that the appellant's detention was lawful because he had committed new or fresh breaches of the deportation order which was in force against him showing that he intended to avoid removal from the State. This gave rise to a power to make a new arrest and to issue a new detention notification.

5 5. The appellant appeals against the decision of the High Court.

6 6. The essential facts are not in dispute. The appellant is an Algerian national. He claimed asylum in the State on 25 ^th October 2006. The Minister for Justice Equality and Law Reform, following his unsuccessful invocation of the asylum process, refused to treat him as a refugee. On 20 ^th August 2009, the Minister made a Deportation Order in respect of the appellant. That Deportation Order required him "to leave the State within the period ending on the date specified in the notice served on or given to [him] under subsection (3)(b)(ii) of the said section 3 [of the Act of 1999], pursuant to subsection (9)(a) of the said section 3 and to remain out of the State."

7 7. On 21 ^st September 2009, a letter was sent to the appellant from the Repatriation Unit of the Irish Naturalisation and Immigration Service, a division of the Department of Justice Equality and Law Reform. That letter constitutes the notice issued to the appellant under Section 3(3)(b)(ii) of the 1999 Act. That notice conveyed to the appellant a number of requirements which he has admittedly breached but which are not relevant to the central issue on the appeal. They include notice that he was required to present himself at the office of the GNIB on 8th October 2009, to produce certain travel documents, to co-operate in obtaining documents required for his removal from the State and to reside at a specified address. The key requirement of the notice was as follows:

"The Deportation Order requires you to leave the State and to remain outside the State. You are obliged to leave the State by 8 ^th October 2009."

8 8. In any event, it is common case that the appellant did not and does not intend to comply with the requirement that he leave the State.

9 9. It was not until 8 ^th February 2012 that the Garda authorities took active steps to enforce the Deportation Order. Very probably this was because the appellant was evading deportation. In particular, he did not reside at the address in Waterford where he was required to reside. Detective Garda O'Halloran on 8 ^th February 2012 went to an address in Drumcondra and met the appellant who could offer no explanation for his failure to present himself at the offices of the GNIB on 8 ^th October 2009.

10 10. Detective Garda O'Halloran arrested the...