Kahinde Rebecca Ashade v Governor of Dochas Centre
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Eagar |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] IEHC 643 |
| Date | 19 December 2014 |
| Court | High Court |
[2014] IEHC 643
THE HIGH COURT
BETWEEN
AND
Immigration and Asylum – Unlawful detention – Deportation Order - Appeals
Facts: The applicant complained pursuant to Article 40.4 of the Constitution that she was illegally detained in prison. The assistant governor of the prison produced the relevant detention order made under the Immigration Acts 1999 and s. 5 of the Immigration Act (as amended) provided for the Immigration Act 1999 (Deportation) Regulations 2005 made in exercise as a power confirmed by s. 7 of the Immigration Act 1999. The order confirmed that the governor had been directed to detain the applicant pending her removal from the State. The applicant had been arrested and detained for failing to comply with a deportation order and a notice under s. 3(b)(ii). The applicant applied under s. 3 (11) of the Immigration Act 1999 (as amended) to revoke the deportation orders made under s. 3 of the Act. The Minister for Justice and Equality considered the application for revocation and made it conditional upon the applicant to present herself to the Garda National Immigration Bureau.
Held by Eagar J: The court determined that the Minister has a discrete role to play when deciding whether or not to revoke a deportation order. The condition imposed on the applicant by the respondent was unlawful as the Minster acted ultra vires. The subsequent arrest and detention of the applicant was also unlawful and the applicant was freed from the previous bail conditions imposed. As a result of its decision the court did not need to consider the Constitutional of ECHR arguments.
JUDGMENT of Mr. Justice Robert Eagar delivered on the 19th day of December 2014
1. By an affidavit sworn on the 1 st December 2014 Brian Bums, Solicitor made a complaint pursuant to Article 40.4 of the Constitution that the applicant was being illegally detained in the Dochas Centre, Mountjoy Prison. Upon the ex parte application of counsel for the applicant grounded upon the said affidavit, MacEochaidh J. made an order pursuant to Article 40.4.2 of the Constitution that the respondent produce the applicant to the court at 4pm on the 1 st December and that the respondent certify in writing the grounds of the detention of the applicant. Maria Connolly, the assistant governor of the Dochas Centre produced the detention order dated the 20 th November 2014 and exhibited same. The detention order was a detention order under the Immigration Acts 1999 and s. 5 of the Immigration Act (as amended) provided for the Immigration Act 1999 (Deportation) Regulations 2005 made in exercise as a power confirmed by s. 7 of the Immigration Act 1999. The notification of detention order confirmed that the governor of Mountjoy Womens Prison was directed that the applicant be detained in Mountjoy Womens Prison pending the making of arrangements for her removal from the State. The basis of the arrest and detention is that Detective Garda Moran stated that with reasonable cause he suspected that the person against whom the deportation order is enforced:-
a) Had failed to comply with the provision of the order.
b) Had failed to comply with a requirement in a notice under s. 3 (3)(b)(ii).
It also indicated that the applicant was lodged in the Dochas Centre on the 20 th November 2014.
2. The affidavit of Martin O'Mahony, Higher Executive Office in the Legal Services Support Unit at the Irish Naturalisation and Immigration Service in the Department of Justice swore an affidavit on the 3 rd December 2014. He sets out the background of the applicant's position within the State and indicated that the applicant claimed asylum in the State on the 10 th March 2008. He said that she completed an ASY1 Form on that date at the offices of the Refugee Applications Commissioner. The applicant was interviewed by the Refugee Applications Commissioner on the 29 th April 2008 and the Commissioner prepared a report under s.13 of the Refugee Act dated the 1 st May 2008 in which she recommended that the applicant not be declared a refugee. The applicant then unsuccessfully appealed the Commissioner's negative recommendation to the Refugee Appeals Tribunal and both the Commissioner and the Tribunal found the applicant's claim to lack credibility.
3. Mr O'Mahony indicated that the Minister had written to the applicant and notified her that he had decided to refuse to give her and her daughter declarations of refugee status, that their entitlement to stay in Ireland had expired and then set out the options open to them including applying for subsidiary protection or to make representations to remain temporarily in the State under s.3 of the Immigration Act 1999.
4. Mr O'Mahony stated that applications for subsidiary protection and leave to remain were made on behalf of the applicant and her daughter by a solicitors firm other than the solicitors firm who are acting for the applicant at this time. He states that the application for subsidiary protection which was based on the same assertions as underpinned her application for refugee status, was unsuccessful due to lack of credibility and in the alternative the availability of state protection to the applicant in Nigeria. It is somewhat unhelpful that the application for subsidiary protection and the letter of response from the Minister dated the 29 th April 2009 has not been exhibited to the court.
5. Mr O'Mahony continued by indicating that the application for leave to remain was unsuccessful although he does not specify the date in which it was unsuccessful but continues to state that on the 18 th November 2009 the Minister signed deportation orders in respect of the applicant and her daughter. He further says that the deportation orders were notified to them by letter dated the 20 th November 2009 which is exhibited by Mr O'Mahony. The letter was addressed to the Eglinton Hotel, The Promenade, Salthill, Co Galway by registered post with copies to the Garda National Immigration Bureau and the solicitors then acting for the applicant.
6. The letter indicates that a copy of the deportation order was enclosed with the letter which is exhibited. It also stated that a copy of the Minister's considerations...
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