Ojo v Governor of Dochas Centre and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 May 2003
• Neutral Citation: [2003] IEHC 622
• Court: High Court
• Docket Number: [No. 265 S.S./2003]
• Date: 08 May 2003

[2003] IEHC 622

THE HIGH COURT

[No. 265 S.S./2003]

[No. 103 J.R./2003]

OJO v. GOVERNOR OF DOCHAS CENTRE & ORS

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

BOLA FUNMI OJO

APPLICANT

AND

THE GOVERNOR OF D ÓCHAS CENTRE

RESPONDENT

AND

BETWEEN

BOLA FUNMI OJO

AND

DANIEL OJO

(A minor suing by his mother and next friend Bola Funmi Ojo)

AND

TOKE OJO

(A minor suing by her mother and next friend Bola Funmi Ojo)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM COMMISSIONER OF AN GARDA SÍOCHÁNA GOVERNOR OF MOUNTJOY PRISON ATTORNEY GENERAL IRELAND

OJO v. GOVERNOR OF DOCHAS CENTRE & ORS

RESPONDENTS

Citations:

CONSTITUTION ART 40.4

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 (DEPORTATION) REGS 2002 SI 103/2002

IMMIGRATION ACT 1999 S7

IMMIGRATION ACT 1999 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

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

IMMIGRATION ACT 1999 S5(1)(A)

CONSTITUTION ART 40.4

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S9(A)(I)

IMMIGRATION ACT 1999 S3(10)

IMMIGRATION ACT 1999 S6

REFUGEE ACT 1996 S9(4)(A)

REFUGEE ACT 1996 S9(2)

REFUGEE ACT 1996 S9(1)(B)

IMMIGRATION ACT 1999 S3(1)(A)

IMMIGRATION ACT 1999 S3(11)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

IMMIGRATION ACT 1999 S5(6)

IMMIGRATION ACT 1999 S3

GUTRANI V GOVERNOR OF WHEATFIELD UNREP FLOOD 19.2.1993

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10

IMMIGRATION ACT 1999 S5(1)(B)

IMMIGRATION ACT 1999 S5(1)(C)

IMMIGRATION ACT 1999 S5(1)(D)

IMMIGRATION ACT 1999 S5(1)(A)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

OSAYANDE & LOBE V MIN JUSTICE & ORS UNREP SUPREME 23.1.2003

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

O'BRIEN V BORD NA MONA 1983 IR 255

Synopsis:

IMMIGRATION

Asylum

Constitutional law - Judicial review - Habeas Corpus - Bias - Arrest and detention of applicant - Application for residency - Fair procedures - Whether arrest of applicant lawful - Whether applicant should be released from custody - Whether applicant entitled to reside in State - Whether decision of Minister tainted by bias - Immigration Act, 1999 - Bunreacht na hÉireann - Illegal Immigrants (Trafficking) Act, 2000 (2003/265SS & 103JR - Finlay-Geoghegan J - 8/5/2003)

Ojo v Governor of Dóchas Centre

The applicant had applied for asylum in the State. The application had been processed and had been refused and a deportation order had been made. However the situation had been complicated by the fact that during this time the applicant had a child in the State and on this basis had applied for residency. When the applicant attended at a Garda Station for the purposes of talking to the immigration officer it came to the attention of the Garda Síochána that there was an outstanding deportation order in respect of the applicant. Thereafter the applicant was arrested and conveyed to prison along with her infant son pursuant to section 5 of the Immigration Act, 1999. Proceedings were issued on behalf of the applicant firstly seeking her release pursuant to Article 40 of the Constitution and judicial review proceedings were also issued seeking an order of certiorari in respect of the Minister for Justice’s decision to refuse residency and seeking an order of mandamus in respect of the application for residence. It was contended on behalf of the applicant that the power of arrest and detention as set out in section 5 of the Immigration Act, 1999 was only for the purposes of detention when there was a proximate or concluded intention to deport. As a decision on the residency application had to be made by the Minister before deportation could be effected section 5 of the 1999 Act could not be invoked. It was only after the applicant had been arrested and detained that the Minister for Justice made a decision refusing the application for residency. It was contended that the decision of the Minister in refusing residency was unlawful in that it was tainted by bias, did not give full consideration to the issues involved and was influenced by irrelevant considerations such as the Article 40 proceedings.

Held by Finlay Geoghegan J in making the following orders. The power of detention must be exercised in accordance with the principles of constitutional justice and there must be a concluded intention to deport the applicant before there could be a valid detention under section 5 of the 1999 Act. As there had been no concluded intention to deport the applicant when the applicant was arrested, the arrest and subsequent detention of the applicant was not lawful and the applicant would be released from custody pursuant to Article 40 of the Constitution. In relation to the relief claimed in the judicial review proceedings it was clear that the Minister was bound to act in accordance with constitutional justice. In the light of the recent Supreme Court case Osayande relating to residency issues the applicant should have been afforded an opportunity to make further representations to the Minister in respect of her application for residency. The procedures followed did not accord with constitutional justice. Accordingly the order of certiorari in respect of the refusal of residency would be granted. However the further relief of mandamus would be refused as the applicant would now have an opportunity to make further submissions to the Minister in the light of recent caselaw.

Ms. Justice Finlay Geoghegan

1 By an affidavit sworn on the 5^th February, 2003, Suzanne Glazier, solicitor, made a complaint pursuant to Article 40.4 of the Constitution that the applicant was being illegally detained in the Dóchas Centre, Mountjoy Prison. Upon the ex parteapplication of counsel for the applicant grounded upon the said affidavit I made an order pursuant to Article 40.4.2 of the Constitution that the respondent produce to the court at 2 pm on the 6^thFebruary, 2003, the applicant and certify in writing the grounds of her detention.

2 The certificate was furnished by Mr. Colm Barclay, deputy governor of the Dóchas Centre, on behalf of the respondent, to the effect that the applicant was being held pursuant to a detention order dated the 27^th January, 2003, addressed to the Governor of Mountjoy Women's Prison, annexed to the certificate, which was in the following terms:

"In exercise of the powers conferred on me by the Immigration Act1999(Deportation) Regulations, 2002 ( S.I. No. 103 of 2002) made in exercise of the powers conferred by Section 7 of the Immigration Act,1999(No. 22 of 1999), I direct that pending the making of arrangements for his/her removal from the State, that:"

Bola Funmi Ojo and baby in arms

3 be detained in Mountjoy Women's Prison a prescribed place for the purpose of Section 5(1) of the Immigration Act,1999(No. 22 of 1999)

Signed: Pat Duggan

Authorised Person"

4 The detention order bore the stamp of the Garda Síochána Immigration and Registration Office, Ballybricken, Waterford City with a date of 27^th January, 2003. The detention order was endorsed as executed by lodging Ms. Bola Funmi Ojo at Mountjoy Women's Prison on the 27^th January, 2003, at 5.45 pm.

5 On the 6^th February, 2003, at 2 pm, Ms Moorhead, counsel for the respondent, informed the court that earlier on that day a decision had been made by the Minister for Justice, Equality and Law Reform ("the Minister") refusing an application for residency made in January, 2003, by the applicant upon the basis that she was then the mother of an Irish born son namely Daniel Ojo who had been born in the State on the 15^th December, 2002. The matter was adjourned to the 7^th February, 2003, to permit the respondents file affidavits.

6 On the 7^th February, 2003, the respondents filed in court an affidavit of Garda Patrick Duggan dealing with the circumstances of the applicant's arrest and detention on the 27^th January, 2003 and an affidavit of Charles G. O'Connell Assistant Principal Officer of the Repatriation Unit, Immigration Division of the Department Justice Equality and Law Reform, dealing with the orders and decisions made by the Minister in respect of the applicant and her four year old daughter Toke Ojo. On that date the respondents consented to the release of the applicant on bail pending the full hearing of the Article 40 Inquiry and also an intended application for leave to issue judicial review pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act,2000, seeking inter alia to challenge the decision made by the Minister on the 6^th February, 2003.

7 The application for leave to issue judicial review was commenced by notice of motion dated the 12^th February, 2003 (Record No. 103 JR/2003) on behalf of Bola Funmi Ojo, Daniel Ojo, a minor suing by his mother and next friend Bola Funmi Ojo, Toke Ojo, a minor suing by her mother and next friend Bola Funmi Ojo, applicants, against the Minister for Justice Equality and Law Reform, Commissioner of An Garda Síochána, Governor of Mountjoy Prison Attorney General and Ireland, respondents. Further affidavits were sworn by the applicant and her solicitor in the application for leave to issue judicial review proceedings. A statement of opposition was prepared on behalf of the respondents and not delivered and no further affidavits were sworn on behalf of the respondents.

8 The Article 40 Inquiry and the application for leave to issue judicial review proceedings came on for hearing together before me. There was some confusion as to the position in the judicial review proceedings referred to below. It was agreed that all the affidavit evidence be evidence in both sets of proceedings and that both proceedings be heard together. Counsel for the respondents stated that there were factual matters stated by the applicant in her affidavit, which were not accepted by the respondents but were not considered germane to the issues to be determined. It was further agreed that the legality of the arrest and...