Moeen Akram v The Minister for Justice and Equality and The Commissioner of an Gakda Siochána
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh,Ms. Justice Donnelly |
| Judgment Date | 12 May 2022 |
| Neutral Citation | [2022] IECA 108 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 2019/75 |
[2022] IECA 108
Donnelly J.
Ní Raifeartaigh J.
Power J.
Record No.: 2019/75
THE COURT OF APPEAL
Judicial review – Unlawful detention – Permission to enter the State – Applicant challenging his detention and the decision to refuse him entry into the State – Whether the copying and retention of documents obtained from the applicant’s phone was carried out in a manner that was not permitted
Facts: The applicant, Mr Akram, a national of Pakistan, on the 21st October, 2017, presented himself to an immigration officer at Dublin Airport. He was in possession of a travel visa but following an interview with the officer in the course of which the officer searched certain text messages on the appellant’s phone, the officer refused the appellant permission to land pursuant to s. 4(3)(k) of the Immigration Act 2004. The appellant was held at Cloverhill Prison until the 25th October, 2017 when he was removed from the State. Shortly thereafter, the appellant brought proceedings by way of judicial review, challenging his detention and the decision to refuse him entry into the State. He later amended his statement of grounds to include a claim for declaratory relief that the search of his phone was a breach of his rights under Article 8 of the European Convention on Human Rights (the ECHR). In a judgment delivered on the 19th November, 2018 ([2018] IEHC 643), the trial judge refused the appellant the reliefs sought by way of judicial review. By further judgment delivered on the 29th January, 2019 ([2019] IEHC 33), the High Court granted the appellant leave to appeal on the issue of whether s. 7 of the 2004 Act permitted the search of the phone of a non-national landing or embarking in the State by an immigration officer (or member of An Garda Síochána). The appellant had, as a part (b) to that question, sought to have the following question certified: (Is the power prescribed by law?” The trial judge stated that question (b) added nothing to question (a) and would therefore not be certified. The appellant also sought to have a second question certified. This was a question that referred back to the first question asking: “If so, does that law comply with Art. 8(2) ECHR, is it necessary in a democratic society?” The trial judge refused leave stating that the point was not argued at hearing, nor was it a point of law that arose from the Court’s judgment. The appellant included in his appeal various grounds which concerned the two issues of: (a) the refusal to grant him permission to enter the State; and (b) the legality of the search of his phone. A separate issue arose as to the extent of the grounds upon which leave to seek judicial review was granted.
Held by the Court of Appeal (Donnelly J) that the appellant was given sufficient reason as to why he was being refused permission to enter the State. Donnelly J rejected the appellant’s submission that he was not in a position to challenge the legality of his detention. Donnelly J rejected the appellant’s submissions that it was the impugning of his brother’s marriage that was so irrational it was unreasonable and that it was an irrelevant consideration to the appellant. Donnelly J held that it was relevant to the consideration of whether the appellant intended to enter the State for purposes other than those expressed by him. Donnelly J held that she would dismiss the grounds of appeal in so far as they related to the refusal of the High Court to grant an order of certiorari quashing the decision to refuse the appellant permission to enter the State. Donnelly J held that, applying the plain meaning of the provisions of s. 7(3) of the 2004 Act, the immigration officer acted in excess of the powers permitted by the legislation in retaining the photographs that he had taken of documents displayed on the screen of the appellant’s mobile phone after he had concluded his examination of those documents. Donnelly J held that she would allow the appeal in part and make an order granting the appellant a declaration that the copying and retention of documents obtained from his phone was carried out in a manner that was not permitted under s. 7(3) of the 2004 Act and was incompatible with the State’s obligations under Article 8 ECHR.
Ní Raifeartaigh J disagreed with the judgment of Donnelly J insofar as it proceeded to a conclusion in respect of the retention of the text messages, by reason of the manner in which the case was pleaded and how it evolved more generally, but agreed with all other aspects of her judgment.
Appeal allowed in part.
JUDGMENT of Ms. Justice Donnelly delivered on the 12 th day of May, 2022
. On the 21 st October, 2017 Moeen Akram, the appellant, a national of Pakistan then a student in Cyprus, presented himself to an immigration officer at Dublin Airport. He was in possession of a travel visa but following an interview with an immigration officer in the course of which the officer searched certain text messages on the appellant's phone, the immigration officer refused the appellant permission to land pursuant to section 4(3)(k) of the Immigration Act, 2004 (“the Act of 2004”). He was handed a standard form document signed by the immigration officer which read:-
“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: (k) that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national”.
. The appellant was held at Cloverhill Prison until the 25 th October, 2017 when he was removed from the State. Shortly thereafter, the appellant brought proceedings by way of judicial review, challenging his detention and the decision to refuse him entry into the State. He later amended his statement of grounds to include a claim for declaratory relief that the search of his phone was a breach of his rights under Article 8 of the European Convention on Human Rights (“the ECHR” or “the Convention”).
. In a judgment delivered on the 19 th November 2018 ( [2018] IEHC 643), the trial judge refused the appellant the reliefs sought by way of judicial review. By further judgment delivered on the 29 th January, 2019 ( [2019] IEHC 33) the High Court granted the appellant leave to appeal on the issue of whether s. 7 of the Act of 2004 permitted the search of the phone of a non-national landing or embarking in the State by an immigration officer (or member of An Garda Síochána). The appellant had, as a part (b) to that question, sought to have the following question certified “Is the power prescribed by law?” The trial judge stated that question (b) adds nothing to question (a) and will therefore not be certified.
. The appellant also sought to have a second question certified. This was a question that referred back to the first question above asking: “If so, does that law comply with Art. 8(2) ECHR, is it “necessary in a democratic society?”. The trial judge refused leave stating as follows: “This point was not argued in this format at hearing. Nor is it a point of law that arises from the Court's judgment. It is not therefore a point in respect of which the requisite certificate /leave can or will issue.”
. The appellant's appeal extended beyond the issue on which the required certificate permitting him to appeal had been granted. He included in his appeal various grounds which concerned the two issues of:
(a) the refusal to grant him permission to enter the State; and
(b) the legality of the search of his phone.
. There is no bar to an applicant for relief by way of judicial review concerning immigration matters requiring a certificate from the High Court from expanding the grounds of appeal beyond the question certified thereby appealing in respect of other matters which were determined against him or her in the High Court (See Chen v. Minister for Justice and Equality [2021] IECA 99). A separate issue arises as to the extent of the grounds upon which leave to seek judicial review was granted and I will deal with that as it arises in the course of this judgment.
. The appellant had previously booked a flight to Dublin from Lanarca with a return flight to Larnaca from Belfast. On that occasion he was refused a UK visa. He later changed his flights so that not only would he fly to Dublin, but he would also return from Dublin. He obtained an Irish visa; itself not a guarantee of the granting of permission to enter the State. He presented himself at Dublin airport. Over the course of a number of affidavits, the appellant gave increasingly detailed accounts as to what occurred during his exchanges with the immigration official. Exhibited to one of the appellant's affidavits is his own letter of instruction to his solicitor where he said that upon flying to Dublin Airport from Larnaca, Cyprus, he was stopped at a passport control counter by INIS uniformed officers. The appellant says that the immigration officer asked him questions about studying in Cyprus and then said to him “to give [him] his mobile phone” and asked him to open it as it was locked. He says that he showed something on a computer to another official and then asked if he was engaged to be married. When the appellant replied in the negative he was asked to go with them. He was kept waiting for 30 or 40 minutes while they checked his phone. He was asked the question “who [was] Kate”; he replied saying she was his ex-girlfriend. He was asked questions about whether he was paying her to marry him. There were further questions about texts on the phone. His solicitor's affidavit said that he was shown...
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