Mthethwa (an applicant for Habeas Corpus)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barniville
• Judgment Date: 22 May 2018
• Neutral Citation: [2018] IEHC 342
• Docket Number: [RECORD NO. 2018 6 SSP]
• Court: High Court
• Date: 22 May 2018

[2018] IEHC 342

THE HIGH COURT

Barniville J.

[RECORD NO. 2018 6 SSP]

IN THE MATTER OF THE CONSTITUTION

AND

IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS AND/OR IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION

BY

PREMIER SIPHO MTHETHWA

AT PRESENT IN CUSTODY IN LIMERICK PRISON

Administrative & constitutional law – Detention of applicant – Deportation order - Challenge to legality of detention

Facts: The applicant had been arrested and detained pursuant to a deportation order. He sought to apply for review of his detention, under art 40 of the Constitution. The matter now came before the High Court

Held by Barniville J, that the application would be refused. The Court was not persuaded that any of the applicant’s circumstances or submissions revealed any grounds to require an enquiry under art 40, nor any basis for treating his application as seeking judicial review.

JUDGMENT of Mr. Justice Barniville delivered on the 22nd day of May, 2018

1 The applicant is at present in custody in Limerick Prison having apparently been arrested on foot of a deportation order made by the Minister for Justice, Equality and Law Reform (the ‘Minister’).

2 The applicant wishes to apply for an enquiry into the legality of his detention in Limerick Prison pursuant to Article 40.4.2° of the Constitution and/or for an order of habeas corpus. He is not legally represented.

3 The applicant relies in support of his application on a signed but unsworn form of affidavit which is undated (the ‘statement’). The applicant's statement was forwarded by the General Office of Limerick Prison on 2 May 2018 and was received by the Registrar of the High Court on 11 May 2018.

4 In the statement, the applicant states that he was arrested at his home in Tralee, Co. Kerry on 30 April 2018 and was brought to Limerick Prison ‘ for deportation back to South Africa’. He states that his wife and four children (two of whom are Irish citizens) are living in Ireland.

5 In his statement, the applicant puts forward a number of reasons as to why he says that his detention is unlawful as a result of which he should be entitled to an order of habeas corpus or an enquiry pursuant to Article 40.4 of the Constitution. He makes the following points:

• He states that he came to Ireland as an asylum seeker in 1999 and that his wife joined him in Ireland in 2000. His stepdaughter and son came to Ireland to join the applicant and his wife in 2003. They are aged 26 and 25 respectively.

• The applicant's eldest daughter was born in Ireland in 2000. Another daughter was born in Ireland in 2005. Both are Irish citizens.

• The applicant and his wife have been working in Ireland since 2001 when the applicant and his wife obtained permanent residence permits from the Garda National Immigration Bureau (GNIB). The applicant worked as a kitchen maintenance worker in a hotel in Killarney from 2002 until 2010. The applicant's wife qualified as a healthcare assistant and has been working in that capacity since then. She works in a care home in Listowel, Co. Kerry.

• The applicant was convicted in 2010 of an offence or offences arising from the possession of cannabis resin. The applicant received a prison sentence of seven years. He states that due to his good behaviour while in prison, he was released after four and a half years in custody.

• The applicant states that while he was in prison his residence permit expired. Following his release from prison (the date of which is not stated but appears to have been some time in 2015) the Minister made a deportation order in respect of the applicant. The applicant does not specify the date of the deportation order but I infer that it was some time in 2015. The applicant states that the deportation order was made while the applicant was undertaking community service following his early release from prison. The applicant states that the same Minister who made the deportation order had granted him early release from prison to undertake community work.

• The applicant states that his eldest daughter is seventeen years of age and has just been admitted to the first year of ‘ Cork School of Commerce’. The applicant's youngest daughter is in her first year of secondary school in Tralee.

• The applicant asserts that removing or deporting him from Ireland back to South Africa ‘ would be a very big problem not just for [him] alone but for [his] whole family’ and in particular for his daughter who he states is ‘pursuing a career in nursing’ and that it ‘will be difficult for [his] wife alone’ to support his daughter in college without his assistance.

• The applicant appeals to the court to intervene ‘ to stop and revoke this deportation order’. He states that as a human being he deserves a ‘ second chance in life’ and that he will ‘ never disappoint’ the court if his application is granted.

6 As the applicant is a detained person he is entitled to apply for an enquiry under Article 40.4 of the Constitution. However, he is not entitled to launch a collateral attack on the deportation order by means of the Article 40 procedure. See, for example, M.A. (Pakistan) v. The Governor of Cloverhill Prison [2018] IEHC 95 (Humphreys J.).

7 The applicant has not provided a copy of the deportation order with his application. Nor has he specified the date on which it was made. However, as noted above, I infer from what the applicant states that it was probably made some time in 2015. It appears that the detention order has not been successfully challenged by way of an application for judicial review. There is nothing in the applicant's statement to indicate any legal ground on which it could be said that the detention order...