Om v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 01 August 2011
• Neutral Citation: [2011] IEHC 341
• Court: High Court
• Date: 01 August 2011

[2011] IEHC 341

THE HIGH COURT

[No. 1478 SS/2011]

Om v Governor Of Cloverhill Prison

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

FRANCIS DAVID OM

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Abstract:

Immigration - Asylum - Judicial review - Liberian national - Deportation - Detention - legality - Period of time - Credibility grounds - lawful arrest - Whether continued detention was law

Facts: The applicant was a Liberian national and his application for asylum had been rejected on credibility grounds, given the discrepancies in his account given about life in Liberia and his lack of knowledge of Liberian history and geography. The applicant had been arrest pursuant to s. 5(1) Immigration Act 1999, as it was believed that he was frustrating attempt to progress his deportation and he had been given a genuine opportunity to prove or disprove the suggestion that he was not Liberian. The Court had to consider whether the arrest of the applicant was lawful and whether the continued detention of the applicant was lawful.

Held by Hogan J. that while the original arrest was lawful, the current detention of the applicant was not. A reasonable suspicion had been legitimately formed that the applicant was trying to avoid his removal. As there was no real prospect that his deportation could be effected to his country of origin within the time period of six to eight weeks, the permissible statutory detention period, the Court would direct that the applicant be released with immediate effect.

Reporter: E.F.

1 1. This application under Article 40.4.2 of the Constitution represents in its own way a paradigmatic example of one of the fundamental difficulties facing those who are charged with administering the asylum system, namely the nearly impossibility of ascertaining accurately the true state of affairs in distant countries of which we have but little knowledge. At the heart of the present case is the question of whether the applicant, Mr. Om, is a Liberian national, yet the resolution of this factual dispute requires Gardaí, civil servants, diplomats and, to some extent, this Court, to make an assessment of whether this is or could be true.

2 2. The problem in the present case arises in the following way. While the applicant has consistently claimed to be a Liberian national since his arrival in the State on 14 ^th July, 2003, when he sought asylum, his precise origins have always been a matter of doubt. In its decision of 7 ^th April, 2004, rejecting the asylum claim on credibility grounds, the Refugee Applications Commissioner concluded that he showed a "distinct lack of knowledge of Liberian history and geography". The Refugee Appeals Tribunal took a similar view in its decision of 26 ^th March, 2007, when the Tribunal member stated:-

"While the applicant has some knowledge of Liberia, his account is not consistent with someone who claims to have lived all his life in Liberia and to have worked in Liberia for some time and these discrepancies serve to undermine the credibility of his account."

3 3. Following the rejection of the asylum application, Mr. Om made an application for subsidiary protection which was refused on 27 ^th March, 2009. The Minister for Justice, Equality and Law Reform made a deportation order on 5 ^th March, 2009, and an application to revoke that order was also rejected on 16 ^th November, 2009. It is worth noting that all these decisions nevertheless proceeded on the assumption that the applicant was Liberian. From that point the applicant was required regularly to report to the offices of the Garda National Immigration Bureau ("GNIB") which he has done for over two years.

4 4. The events giving rise to the present application really commenced on 18 ^th July, 2011, when an official from the Liberian Embassy in London, Mr. Morris Barsee, travelled to the GNIB offices in Dublin with a view to assisting them with the interviewing of Liberian nationals who were the subject of deportation orders in this State. On that day Mr. Om attended at GNIB and was subsequently introduced to Mr. Barsee. The latter interviewed him for the best part of thirty minutes, in part it seems by reference to a pre-printed questionnaire. Mr. Barsee concluded that, based on what were said to be basic errors in relation to the history, geography and languages of Liberia, Mr. Om was not Liberian and the Embassy was not, accordingly, prepared to issue a travel document for him.

5 5. Detective Garda Fallon of GNIB then went to speak with the applicant in the company of Detective Garda Boland. They put it to Mr. Om that he could not be Liberian in view of the assessment conducted by Mr. Barsee and that any Liberian national would be expected to have an elementary knowledge of Liberian geography, history and politics. The applicant nonetheless insisted that he was Liberian.

6 6. At that point the Gardai informed Mr. Om that they believed that he was frustrating the attempts of the GNIB to progress his deportation from the State by stating that he was not Liberian when he was not. As no new information was forthcoming from the applicant, he was arrested by Detective Garda O'Honrahan pursuant to s. 5(1) of the Immigration Act 1999 ("the 1999 Act")(as amended) on the basis that his actions constituted an attempt to avoid removal from the State. As Detective Garda Fallon put it in his affidavit, he was "satisfied that the applicant was not Liberian and [that he] had been given a genuine opportunity to prove or disprove same". The arrest took place at 3.40pm on 18 ^th July, 2011, and the applicant was brought to Cloverhill Prison where, as evidenced by the notification of detention form, he was detained at 4.30pm later that day.

7 7. Following an application in that behalf to this Court on 21 ^st July, 2011, I directed that an inquiry into the legality of the applicant's detention under Article 40.4.2 of the Constitution should be commenced. Shortly after the inquiry was commenced, it came to Detective Garda Fallon's attention that the applicant had previously furnished what he claimed were a Liberian identity card and a Liberian birth certificate to the immigration authorities in 2003. He then arranged to bring these papers to the Liberian Embassy in London where they were subsequently pronounced to be false documents. I will return to that issue presently.

8 8. There are essentially two principal legal issues which arise here. First, was the arrest of the applicant lawful? Second, assuming that it was, is the continued detention of the applicant lawful? We may consider these in turn.

was the arrest of the applicant lawful?

9 9. Section 5(1) of the 1999 Act (as amended) provides that:-

"Where an immigration officer or a member of the Garda Síochána, with reasonable cause suspects that a person against whom a deportation order is in force-"

(a) has failed to comply with any provision of the order or with the requirement in a notice under section 3(3) (b) (ii),

(b) intends to leave the State and enter another state without lawful authority,

(c) has destroyed his or her identity documents or is in possession of forged identity documents, or

(d) intends to avoid removal from the State,

he or she may arrest him or her without warrant and detain him or her in a prescribed place."

10 10. In essence, the question here is whether the Gardai might reasonably have concluded that the applicant intended to avoid removal from the State in circumstances where they had grounds for believing that he was not a Liberian national. As the language of the 1999 Act itself makes clear ("reasonable cause"), the question of whether the suspicion was justified is itself an objective one. While this Court must always be solicitous of personal liberty and while also fully acknowledging that the reasonableness of a suspicion of this kind is fully open to review, one must equally observe that Gardai operating in the sphere of immigration matters must be permitted to have some latitude in this regard. As Detective Garda Fallon said in evidence, officers from GNIB are daily confronted...