P.O. v G.E. (A Minor)

JurisdictionIreland
JudgeMr. Justice Bernard J. Barton
Judgment Date10 August 2016
Neutral Citation[2016] IEHC 557
Docket NumberNo. 2016/846/ SS]
CourtHigh Court
Date10 August 2016

[2016] IEHC 557

THE HIGH COURT

Barton J.

No. 2016/846/ SS]

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN
P. O.
and
G. E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND P. O. )
APPLICANTS
AND
THE GOVERNOR OF THE DÓCHAS CENTRE

AND

THE CHILD AND FAMILY AGENCY
RESPONDENTS

Constitution – Asylum, Immigration & Nationality – Execution of deportation orders – Arrest and detention – S. 5 of the Immigration Act, 1999 – Art. 40.5 of the Constitution – Presence of the members of Garda Siochana – Course of duty – Child Care Act 1991 – Emergency interim care order

Facts: Following the detention of the applicants for frustrating their deportation, the applicants now made an application under art. 40.5 of the Constitution for an inquiry into the lawfulness of their detention. The first named applicant, being the mother of the second named applicant/minor, contended that her arrest was illegal as it arose from the unauthorised presence of the other members of the Garda in the house of the applicants. The applicants contended that there was violation of rights of the applicants guaranteed under art. 40.5 of the Constitution. The first named applicant argued that the principle and object of the emergency interim care orders obtained by the respondents in relation to the second named applicant was to secure the deportation of the second named applicant. The first named respondent contended that the other members of the Gardai entered the applicants' premises under statutory authority for the purpose of affecting an arrest under s. 5 of the Immigration Act 1999 and that those officers were entitled to be present in the course of their duty to render necessary assistance. The respondents argued that the interim care order application in relation to the minor was made as per statutory requirements.

Mr. Justice Bernard J. Barton dismissed the application of the applicants. The Court held that there was no violation of the applicants' right guaranteed by art. 40.5 of the Constitution. The Court held that the arrest of the first named applicant under s. 5 of the Immigration Act 1999 was in accordance with the law. The Court found that the repeated attempts by the first named applicant to avoid the deportation orders in the present case warranted the detention of the first named applicant and required that the second named applicant be kept under the care and custody of a child and family welfare agency. The Court found that the said decision taken by the respondents was proportionate, justifiable and lawful. The Court found that the second named applicant had not been detained and was not de facto under arrest; rather, she remained at all material times in the custody and under the control of the first named applicant /mother until the second named applicant was taken into care.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 10th day of August 2016
1

The inviolability of the home is an ancient precept of the common law treated with almost sacred reverence by the judges of old and summed up in the well known proverb that ‘ an Englishman's home is his castle’.

2

In his treatise, ‘ The Institutes of the Laws of England’ (1628) Sir Edward Coke, commenting on the precept stated, ‘ for a man's house is his castle, et domus sua cuique est tutissimum refugium’ (and each man's home is his safest refuge).

3

In 1763 the British Prime Minister, Sir William Pitt, first Earl of Chatham, better known to history as Pitt the Elder, commenting on the legal meaning of the precept stated:

‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter.’

4

When the people enacted our Constitution in the exercise of their sovereign power they adopted the common law as the law of the land save in so far as it was inconsistent with the Constitution. The ancient precept that the home of the subject was inviolable received Constitutional protection when it was enshrined as one of the fundamental rights of the citizen in Article 40.5.

5

Concomitant with this fundamental right and of equal if not greater antiquity in the common law is that of liberty itself. Sir William Blackstone in his Commentaries on the Common Law Vol 1, p. 127, described the Magna Carta of 1214 as the first great charter of liberties obtained, sword in hand, from King John. It was extended to Ireland in 1216. The Magna Carta did not create but rather declared the common law including the rights which the subject was entitled to enjoy. Of the right to liberty, it declared ‘.. no freeman shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other way destroyed; nor will We pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land’.

6

The prerogative writ of habeas corpus, first recorded during the reign of Henry II in the 12th.Century, was part of an evolution in the legal process which was devised to give effect to the right that the subject could not to be deprived of liberty save in accordance with the law. Its potency arose from the subject matter with which it was concerned and by virtue of the efficacy with which it could be deployed to “deal with all manner of unlawful confinement”. It is not surprising that the repeated suspensions of Habeas Corpus in Ireland resulting from civil and political unrest during the late Eighteenth, Nineteenth and early Twentieth centuries led to the Constitutional recognition enshrined in Article 40.4.

7

It is the alleged infringement of these rights that is at the centre of these proceedings which concern an inquiry as to the lawfulness of the detention of the Applicants consequent upon the actions of a number of members of An Garda Síochána commencing at 11.10 p.m. on the 26th of July 2016 when they entered the home of the Applicants at the Mosney Accommodation Centre, Co. Meath.

8

Thee Applicants are foreign aliens who are subject to and have been served with deportation orders dated the 28th of November, 2008 made pursuant to the provisions of the Immigration Act, 1999. It is clear from the evidence that the purpose for which the Gardaí entered their home was to give effect to the deportation orders; to that end arrangements had been made to deport and return them both to Nigeria from Dublin Airport by plane at approximately 5.55 a.m. the following morning. It was not in controversy that, although they are not Irish citizens, the Applicants are entitled to the full protection of the law.

9

The second Applicant was born on the 20th of July 2007 and has always lived in Ireland with her mother, the first Applicant. That both wish to remain in Ireland is beyond question and to this end there is little doubt but that from the date of the making of the deportation orders the first Applicant has sought to evade the deportation of herself and her daughter. During the course of the inquiry she gave evidence that in future if it came to it she would comply with any further deportation arrangements. She has twice unsuccessfully applied to have the deportation orders revoked. The Court was advised that irrespective of the outcome of these proceedings it was intended to appeal the refusal of those applications.

Factual background
10

At approximately 9.30 p.m. on 26th July, 2016 Detective Garda Deirdre Durkan accompanied by Detective Garda Michael Byrne, Detective Sergeant David Kennedy and Detective Garda Patrick Flood drove to the Mosney Accommodation Centre in Co. Meath where they arrived at approximately 10 p.m. On arrival they spoke with a security officer at the centre who advised them that the Applicants were residing at 47 Seaview, a duplex unit within the Centre to which the Applicants had recently moved from Cork.

11

In her evidence the first Applicant accepted that she had not complied with the deportation orders; she gave an explanation as to why she had not notified the Immigration service that she had left the accommodation centre in Cork and had moved to Mosney.

12

Shortly after arriving at the centre the Gardaí spoke to the security officer. He went alone to the Applicants' address to ascertain whether they were in residence. He returned and advised the Gardaí that the first Applicant was at a prayer meeting after which she was due to return home, and that the second Applicant, together with an unnamed male individual, were in residence. At approximately 11.10 p.m. the Gardaí went to the Applicant's house with the security officer by which time the first Applicant having returned home and having locked the front door had gone up to her bedroom.

13

The Gardaí did not knock to request entry; rather the security officer opened the front door with a key. Detective Garda Michael Byrne and Detective Sergeant David Kennedy accompanied Detective Garda Durkan into the hallway of the premises. Detective Garda Flood had gone around to the back door. He did not enter the premises. The first Applicant heard the door opening, came onto the landing and stood at the top of the stairs. On her evidence she was shocked by the presence of the Gardaí, however, she did not object and did not ask them to leave. I accept that evidence.

14

Detective Garda Durkan introduced herself and produced an identity card. The other Gardaí also identified themselves. The first Applicant was advised that the officers were from the Garda National Immigration Bureau and was informed as to the purpose of their presence. The Gardaí swore affidavits and gave evidence. Their evidence was that they had been welcomed into the house by the first Applicant; she disputed that she had expressly done so though accepted that she had not asked...

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