Kristo v Governor of Cloverhill Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] IEHC 218
• Court: High Court
• Date: 16 May 2013

[2013] IEHC 218

THE HIGH COURT

[No. 844SS/2013]

Kristo v Governor of Cloverhill Prison & Ors

No Redaction Needed

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

ANJELI KRISTO

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON AND BY ORDER DETECTIVE GARDA JOHN COAKLEY AND THE GARDA NATIONAL IMMIGRATION BUREAU

RESPONDENT

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 2003 S5(2)

IMMIGRATION ACT 2003 S5(1)(E)

IMMIGRATION ACT 2004 S4(2)

IMMIGRATION ACT 2003 S5(1)(F)

IMMIGRATION ACT 2004 S4(3)

M (T) v GOVERNOR OF MOUNTJOY PRISON 2011 4 IR 621 2011/34/9396 2011 IEHC 336

IMMIGRATION ACT 2003 S5(1)(G)

IMMIGRATION ACT 2003 (REMOVAL PLACES OF DETENTION) REGS 2005 SI 56/2005

NI v GARDA COMMISSIONER UNREP HOGAN 27.3.2013 2013 IEHC 134

DUNNE v CLINTON 1930 IR 366

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(4)

IMMIGRATION ACT 2003 S5(3)(A)

IMMIGRATION ACT 2003 S5(2)(A)

JUSTICE AND LAW REFORM (ALTERATION OF NAME OF DEPARTMENT AND TITLE OF MINISTER) ORDER 2011 SI 138/2011

MCDONAGH, STATE v FRAWLEY 1978 IR 131

CONSTITUTIONAL LAW

Legality of detention

Habeas corpus - Albanian national living in Ireland illegally - Apprehended in Netherlands with false passport and charged with offence - Refusal of entry and arrest on return to Ireland - Statutory obligation on person without leave to land to cooperate with authorities engaged in removal of person from state - Alleged deficiencies of arrest and detention - Whether provision authorising arrest applied to applicant - Mandatory wording of section - Whether non-nationals arriving involuntarily obliged to seek permission to land - Whether applicant lawfully arrested - Whether detention in airports or seaports permitted by legislation - Whether detention unlawful - Whether legality of detention affected by incorrect title of minister on warrant - Dunne v Clinton [1930] IR 366 followed - Ni v Garda Commissioner [2013] IEHC 134, (Unrep, Hogan J, 27/3/2013) distinguished - M(T) v Governor of Mountjoy Prison [2011] IEHC 336, (Unrep, Charleton J, 26/7/2011); Kadri v Governor of Wheatfield Prison [2012] IESC 27, (Unrep, SC, 10/5/2012); State (McDonagh) v Frawley [1978] IR 131 and Athanassiadis v Government of Greece [1971] AC 282 considered - Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (SI 56/2005) - Immigration Act 2003 (No 26), s 5 - Immigration Act 2004 (No 1), s 4 - Constitution of Ireland 1937, Art 40.4.2 - Relief refused (2013/844SS - Mac Eochaidh J - 16/5/2013) [2013] IEHC 218

Kristo v Governor of Cloverhill Prison

Facts: The applicant was an Albanian national and had been living in Greece for many years. He was in Ireland for six months unlawfully and had travelled to the Netherlands on a false Greek passport and was returned to Ireland without a passport. He had arrived in Ireland involuntarily and the applicant attacked multiple deficiencies in respect of his arrest and detention in Dublin Airport. It was alleged inter alia that his detention under the Immigration Act 2003 was unlawful as it did not apply to persons in his circumstance. It was further argued he had not applied for permission to land, had been detained in Dublin Airport which was not defined as a lawful place for such a detention, that he had not been in custody of the proper person and that there was no such person as the Minister for Justice in whose custody he could be, given the change of name in the legal instrument.

Held by MacEochaidh J. that the applicant was being detained in accordance with law. His circumstances were covered within the scope of the impugned legislation. No illegality attached to his presence in the airport. The last error complained of was typographical and did not affect jurisdiction.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 16th day of May 2013

2 1. This is an enquiry into the legality of the detention of the applicant in Cloverhill Prison pursuant to Article 40.4.2 of the Constitution.

3 2. I am told that the applicant is an Albanian national. He is married to a Greek national and they have lived in Greece for many years with their children. For the past six months or so the applicant has been in Ireland unlawfully.

4 3. Some time in April 2013, the applicant took a flight from Dublin Airport to Maastricht in the Netherlands. He entered the Netherlands on a false Greek passport. He was apprehended by the Dutch authorities and charged with a related offence. (This criminal matter was due to come before a Dutch Court on the 13 ^th of May 2013.)

5 4. On 3 ^rd May 2013, Garda National Immigration Bureau ("GNIB") officers at Dublin Airport were contacted by the Dutch authorities to say that the applicant was to be returned to Ireland on a flight leaving Maastricht at 12.50 p.m. local time that same day. The applicant was met at the aircraft in Dublin Airport by a garda. He was not accompanied by any Dutch officials. He was brought from Terminal 1 to the GNIB facilities at Terminal 2 where he was questioned by Detective Garda John Coakley who was called to give evidence in this enquiry and testified that he asked the applicant his name, his date of birth and his nationality. The applicant appears to have understood these questions and supplied the relevant information. He said that the applicant was carrying almost €6,000 in cash and had a mobile phone. He asked the applicant if he had a passport. The applicant confirmed that he had no passport. He informed the applicant that he was refusing him entry to the state and that he was arresting him. He then produced a written notice and gave it to the applicant who was aked to sign it which he duly did. It is in the following terms:

"To: Mr. Angeli Kristo"

6 This is to inform the person to whom this notice is addressed that s/he is being refused permission to land in accordance with the provisions of the Immigration Act 2004 on the following grounds:

7 G. That the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality.

8 Signed: John Coakley

9 Immigration Office

10 Date: 3 May 2013"

11 5. This notice was given to the applicant at some time between 1.15 p.m. and 1.30 p.m. on 3 ^rd May 2013, approximately 30 minutes after his arrival in the State. It was then explained to the applicant he would be detained until a travel document could be obtained for him and then he would be removed from the State. The applicant informed Detective Coakley that his Albanian passport was in Greece and that he had a telephone number for his son who, if contacted, would be able to post it to Ireland. He gave his son's phone number to Detective Garda Coakley who dialled the number but the person who answered the phone could not speak English.

12 6. Detective Garda Coakley attempted to explain to the applicant that he should call his son personally and ask his son to make arrangements for the immediate delivery of his passport to Ireland and that this was needed to permit the applicant to leave the country. However, it became apparent that the applicant could not understand what the garda was trying to convey. The garda contacted a translation and interpretation service which located an Albanian speaker. He explained to the interpreter what he wished to express to the applicant and the translator then conveyed that message to the applicant. The applicant then dialled the phone number and an exchange lasting about 20 to 30 seconds took place. Apparently, the applicant had the wrong number. The applicant indicated that he wished to try to remember the number and he was given a pen and paper and brought to a room where he could try to recall his son's phone number in Greece. At approximately 2.20 p.m., it was apparent that he could not recall his son's phone number. During this time, the applicant was in a large room which had seating and a writing table and access to a bathroom. He was offered a drink which he declined. Between 2.20 p.m. and 3.00 p.m., Detective Garda Coakley had two brief conversations with the applicant enquiring whether he could remember his son's phone number. He decided that he would give the applicant until 3.00 p.m. to attempt to recall the number and then to telephone his son if he succeeded. However, the applicant could not recall his son's phone number.

13 7. The applicant was brought from Dublin Airport to Cloverhill Prison by the Garda Transport/Escort Unit, leaving Dublin Airport at approximately 3.45 p.m. and arriving in Cloverhill Prison, according to Detective Garda Coakley's estimate, 30 minutes later. The Assistant Governor of Cloverhill Prison gave evidence that he was taken into that prison at approximately 16.35 hours.

14 8. Detective Garda Coakley informed the court that the purpose of the applicant's presence in the airport between 1.30 p.m. and 3.45 p.m. was to facilitate the applicant's efforts to make contact with his son and to make arrangements for the immediate delivery of his Albanian passport from Greece to Ireland. He said that he was of the view that it would be easier for the applicant to seek to make contact with his son from the garda facilities at Dublin Airport rather than from Cloverhill Prison.

15 9. Detective Garda Coakley also informed the court that the Albanian Embassy in London had been contacted to enquire about obtaining a passport for the applicant. Documentary evidence of identity and of the applicant's connection to Albania would be required before any new passport would be issued. As such, Detective Garda Coakley was of the view that the quickest way for the applicant to obtain a travel document was to contact his son in Greece to get his own passport.

16 10. The applicant's...