Rafique v Governor of The DóCentre
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 17 February 2017 |
| Neutral Citation | [2017] IEHC 80 |
| Docket Number | [2017 No. 111 SS] |
| Court | High Court |
| Date | 17 February 2017 |
[2017] IEHC 80
THE HIGH COURT
Binchy J.
[2017 No. 111 SS]
Constitution – Art. 40.4.2 of the Constitution – Legality of detention – S. 5 of the Immigration Act 1999 – Deformity in warrant of detention – Reg. 5(2) of the European Communities (Free Movement of Persons) Regulations 2015
Facts: The applicant had filed an application for an inquiry into the lawfulness of her detention in the prison under art. 40.4.2 of the Constitution. The applicant contended that she was detained in Dochas Centre, which was not prescribed under s. 5 of the Immigration Act 1999, as it was an independent prison facility under the authority of its own governor. The applicant claimed that she should be entitled to remain in the State pending the determination of her application under reg. 5(2) of the European Communities (Free Movement of Persons) Regulations 2015 as a permitted member of a European Union citizen.
Mr. Justice Binchy held that the applicant's detention was in accordance with the law. The Court held that the Dochas Centre was a part of the Mountjoy Prison and the two governors were provided for better administration purposes and thus, it was a prescribed place of detention for women prisoners under s. 5 of the Act of 1999. The Court held that reg. 5 of the 2015 Regulations did not in any way suggest that the present applicant could not be deported as laid down by Keane J. in C.A. v Governor of Cloverhill Prison [2017] IEHC 48.
The applicant has brought forward an application for an inquiry into the lawfulness of her detention pursuant to Article 40.4.2 of the Constitution. The applicant is detained at the Dóchas Centre, Mountjoy Prison, pursuant to a warrant of detention addressed to the Governor of Mountjoy Prison dated 9th January, 2017. On 6th February 2017, I held the applicant's detention to be in accordance with law this judgment contains the reasons for my decision.
The applicant challenges the lawfulness of her detention on three grounds:-
(i) that she is being detained in a prison not mandated by law as a prescribed place of detention in respect of a person detained pursuant to s. 5 of the Immigration Act 1999;
(ii) that the warrant in question authorising the detention of the applicant is addressed to a person other than the Governor of the place where she is detained, i.e. it is addressed to the Governor of Mountjoy rather than to the Governor of the Dóchas Centre; and that the warrant authorising her detention is bad on its face having regard to the decision of the Supreme Court in the case of Ejerenwa v. Governor of Cloverhill Prison (Unreported, Supreme Court 28th October, 2011,
(iii) that having regard to the decision of the High Court in the matter of B.F.O v. Governor of Dóchas Centre [2005] 2 I.R. 1, there cannot be said to be a concluded intention to deport the applicant in circumstances where she has an application for residency in being and awaiting a decision from the Minister.
The applicant is the subject of a deportation order made by the respondent on the 21st September, 2011. The applicant did not comply with that order. On 9th January, 2017, the applicant was arrested in her home at 38 Rinucinni, Portlaoise, Co. Laois. A warrant for the detention of the applicant was completed by Detective Garda Michael Neville pursuant to s. 5 of the Immigration Act, 1999 (as amended) and pursuant to the Immigration Act, 1999 (Deportation) Regulations, 2005 ( SI No. 55 of 2005). The warrant of detention was addressed to the Governor of Mountjoy Prison. The applicant was then brought to the Mountjoy Prison Campus and delivered in to the custody of Governor Mary O'Connor, the Governor of the Dóchas Prison, Mountjoy.
On 30th January, 2017, the solicitors for the applicant submitted an application on her behalf to the Irish Naturalisation and Immigration Service pursuant to Regulation 5(2) of the European Communities (Free Movement of Persons) Regulations, 2015 (‘the 2015 Regulations’) whereby she applied to be treated as a family member of a European Union citizen on the basis of her dependence of an EU citizen in the State (in his case her aunt). A copy of that application was exhibited to the affidavit sworn by Lauren Martin, solicitor for the applicant, in these proceedings.
Submissions of applicant
Central to the applicant's claim in relation to points (i) and (ii) above is the status of the Dóchas Centre. The applicant maintains that this is an independent prison facility under the authority of its own governor and that it is not one and the same as Mountjoy Prison.
The application is grounded upon the affidavit of the applicant's solicitor, Ms. Lauren Martin, sworn 1st February, 2017. While acknowledging that the Dóchas Centre is on what is known as the Mountjoy ‘campus’, Ms. Martin avers that the Dóchas Centre is a separate entity, with its own governor and is recognised as such by the Irish Prison Service. She avers that within the Mountjoy campus there are two other institutions namely the Glengarriff Parade Training Unit (the ‘Training Unit’) and St. Patrick's Institution, each of which is recognised as a separate institution within the campus.
She further avers that a person, such as the applicant, who is detained under s. 5 of the Immigration Act 1999, may only be detained in a prescribed place of detention and that such places of detention are identified in the second schedule of S.I. No. 55/2005 – Immigration Act 1999 (Deportation) Regulations 2005. While Mountjoy Prison, St. Patrick's Institution and the Training Unit are all prescribed in the schedule to those regulations, there is no reference to the Dóchas Centre.
Counsel for the applicant produced to the Court a number of printouts from various websites which, it is submitted, give credence to the view that the Dóchas Centre is an entity separate from Mountjoy Prison. For example:-
(i) A printout from the website of the Office of the Inspector of Prisons refers separately to Mountjoy Prison, The Dóchas Centre and the Training Unit. Mountjoy Prison is described as a committal prison for adult male prisoners and the Dóchas Centre is described as a committal prison for female prisoners. There is nothing to indicate that the Dóchas Centre forms part of Mountjoy Prison.
(ii) A printout from the website of the Irish Prison Service website refers to Mountjoy Prison campus as comprising Mountjoy Prison, Dóchas Centre, St. Patrick's Institution and the Training Unit.
(iii) A printout from the website of the Irish Prison Service website describes the Dóchas Centre as being a closed medium security prison for females, without any reference to Mountjoy Prison.
(iv) A printout from the website of the Irish Penal Reform Trust refers to the Mountjoy campus as comprising Mountjoy Prison, Dóchas Centre and St. Patrick's Institution.
(v) There is a separate interim report on the Dóchas Centre dated October, 2013 prepared by the then inspector of prisons, Judge Michael Reilly.
(vi) The previous inspector of prisons, Mr. Justice Kinlen prepared a report entitled Mountjoy Prison and Dóchas Centre in 2005.
All of the above, it is submitted, indicates that there is a clear distinction between Mountjoy Prison and Dóchas Centre, and demonstrates that, for legal purposes, they are separate entities.
The governor with responsibility for the Dóchas Centre, Ms. Mary O'Connor, swore an affidavit addressing the status of the Dóchas centre dated 3rd February, 2017. She was cross-examined on this affidavit by counsel for the applicant. In the course of cross-examination, Governor O'Connor agreed that her job title is Governor of the Dóchas Centre. It is submitted on behalf of the applicant that this supports the proposition that the Dóchas Centre is a separate prison under the administration of its own governor.
The respondent relies upon the affidavit of Governor Mary O'Connor referred to above. In her affidavit, Governor O'Connor describes herself as being employed in Mountjoy Prison, Dublin 7. She says that she is currently assigned to and has particular responsibility for the Dóchas Centre, which she states is the part of Mountjoy Prison, within which female prisoners are detained. This part of the prison is also sometimes referred to as Mountjoy women's prison.
Governor O'Connor avers that Governor Brian Murphy is the governor of the Mountjoy campus, which encompasses three separate prisons, namely Mountjoy Prison, the Training Unit and St. Patrick's Institution. Another governor, Governor Lawton is a prison governor of the rank G2 who also has responsibility for the Mountjoy campus. Governor O'Connor and another governor, Governor Gregory Garland, are governors of the rank G3 and Governor O'Connor avers that she and Governor Garland are the governors with responsibility for Mountjoy Prison (including the Dóchas Centre). Governor Garland has responsibility for the day to day administration of the men's part of Mountjoy Prison and Governor O'Connor has responsibility for the day to day administration of the Dóchas Centre. Each of them report to Governor Lawton who has overall responsibility for Mountjoy Prison. She avers that the Training Unit and St. Patrick's Institution are separate prisons. Therefore, while Governor O'Connor may be called upon to assume the duties of Governor Garland, and vice versa (and this does happen, for example, during periods of leave) without any change in the terms of their employment, their duties do not include any responsibility for the Training Unit or St. Patrick's Institution.
Governor O'Connor avers that the general office of Mountjoy Prison deals with both the men's...
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