Roberston v Governor of the Dochas Centre

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date25 January 2011
Neutral Citation[2011] IEHC 24
Date25 January 2011

[2011] IEHC 24

THE HIGH COURT

[No. 135 SS/2011]
Roberston v Governor of the Dochas Centre
IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN

ANNASTACIA ROBERSTON
APPLICANT

AND

GOVERNOR OF THE DOCHAS CENTRE
RESPONDENT

CONSTITUTION ART 40.4.2

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO.2) REG 2006 SI 656/2006 ART 6(2)(A)

IMMIGRATION ACT 2004 S14(1)(B)

CONSTITUTION ART 40.4

IMMIGRATION ACT 1999 S3(9)(B)

GOERTZ, STATE v MIN FOR JUSTICE & ANOR 1948 IR 45

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

UNITED STATES TOBACCO INTERNATIONAL INC v MIN FOR HEALTH 1990 1 IR 394

ALIENS ACT 1935 S5(5)

SOFRONI v MIN FOR JUSTICE & ORS UNREP PEART 9.7.2004 (EXTEMPORE)

SIMON v MIN FOR JUSTICE & ORS UNREP MACMENAMIN 9.9.2005 2005/55/11443 2005 IEHC 298

IMMIGRATION ACT 2004 S5

IMMIGRATION ACT 1999 S5(1)

WALSHE v FENNESSY 2005 3 IR 516

IMMIGRATION

Deportation

Notice - Required three month notice period not given - Meaning of "ordinarily resident" - Lawful residence - Residence grounded on fundamental deceit - Previous deportation order - Whether applicant "ordinarily resident" in State - Whether applicant entitled to special notice provisions - Whether applicant's residence lawful, regular and bona fide - Whether detention lawful - Whether arrest lawful - Whether arresting officer had reasonable cause - The State (Goertz) v Minister for Justice [1948] IR 45; Dillon v Minister for Posts and Telegraphs (Unrep, SC, 3/6/1981); United States Tobacco International Inc v Minister for Health [1990] 1 IR 394; Sofrani v Minister for Justice, Equality and Law Reform (Unrep, HC, Peart J, 9/7/2004); Simion v Minister for Justice, Equality and Law Reform [2005] IEHC 298, (Unrep, HC, MacMenamin J, 9/9/2005) and Walshe v Fennessy [2005] IESC 51, [2005] 3 IR 516 considered - Immigration Act 1999 (No 22), ss 3(9)(b) and 5(1) - Immigration Act 2004 (No 1), s 14(1)(b) - Aliens Act 1935 (No ), s 5(5) - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), reg 6(2)(a) - Constitution of Ireland 1937, article 40.4.2 - Application refused (135/2011SS - Hogan J - 25/1/2011) [2011] IEHC 24

Robertson v Governor of the Dochas Centre

Facts The applicant had originally arrived in Ireland in the year 2000 under an alias. Eventually an order for her deportation was made but the applicant left the State before it could be served. The applicant returned to Ireland under her true name in 2004 and received a student visa which was renewed for a number of years. Ultimately the authorities decided to refuse the applicant permission to remain further in the State and the applicant was arrested. It fell to be decided as to whether the applicant had been ordinarily resident for the period of five years in the State and would therefore be entitled to a three-month notice period under section 3(9)(b) of the Immigration Act, 1999. An application for the applicant's release was brought under Article 40.4 of the Constitution.

Held by Hogan J in refusing the application. The applicant had entered the State in her own name in 2004 without disclosing the critical fact that she was the subject of a deportation order, albeit in the name of an alias which she had deceitfully provided. The phrase "ordinary residence" connoted a residency which was lawful, regular and bona fide. Legislation must be interpreted by reference to certain well-understood general principles of law, one of which was that a person could not be allowed to profit by their own wrong. The applicant had not been ordinarily resident for the purposes of s.3(9)(b) of the 1999 Act. The applicant's residence had been anything but ordinary, as it was grounded on a fundamental deceit. The applicant was therefore in lawful detention.

Reporter: R.F.

1

1. This application for an order releasing the applicant from detention pursuant to Article 40.4.2 of the Constitution again presents the question of what constitutes ordinary residence for the purposes of the Immigration Act 1999 ("the 1999 Act"). The issue arises in the following circumstances: the applicant is a South African national who arrived in Ireland in 2000 under the alias of Martha Kenny. Using this false name the applicant made an unsuccessful application for asylum. When this was ultimately rejected the Minister then made an order providing for her deportation. To this end, the applicant was required to present to the Henry Street Garda Station in Limerick at a specified time and date in November 2002, but she left the State before this could happen. The applicant was thus classed as an evader, albeit under this false name.

2

2. The applicant then returned to Ireland under her true name of Annastacia Robertson in August 2004. The applicant first registered with the Garda National Immigration Bureau in November 2004, whereupon she was given a student visa. This visa was renewed every year up to November 2010. During this period Ms. Robertson participated in a business computer course and thereafter lawfully worked as a child minder.

3

3. Ms. Roberston subsequently married a Latvian national, Mr. Aviars Kalnietis, on 16 th November 2009. In view of her marriage, she then applied to the Irish Naturalisation and Immigration Service for a residence card. That application was dated the 2 nd December 2009 and was signed both by Mr. Kalnietis and Ms. Roberston. One of the questions posed in the form was whether the applicant had ever been the subject of a deportation order in Ireland and, if the answer was in the affirmative, details were required. Ms. Robertson, however, gave an incorrect answer to this question by stating that she never been the subject of such an order.

4

4. While Ms. Robertson was granted temporary residency on foot of this application, this was ultimately refused by decision of the Minister in June 2010. The Minister had taken the view that because Mr. Kalnietis had left his employers of his own volition in April 2010, he was not satisfied that Mr. Kalnietis was exercising his free movement rights in accordance with Article 6(2)(a) of the European Communities (Free Movement of Persons)(No. 2) Regulations 2006. As it happens, it appears that the whereabouts of Mr. Kalnietis are presently unknown and it would seem that he is not presently residing in the State.

5

5. The Minister then wrote to Ms. Robertson advising her that he was considering making a removal order against her in accordance with Article 6(2) of the 2006 Regulations. This was not then pressed, because in correspondence Ms. Robertson's solicitors drew the Minister's attention to the fact that she independently had permission to reside in the State until the end of November 2010. In the meantime, the member of Naas Garda Station with responsibility for immigration matters, Garda Loughnane, had served a series of notices on Ms. Robertson pursuant to s. 14(1)(b) of the Immigration Act 2004 requiring her to attend on a specified dates in October, November and December. It is only fair to record that Ms. Robertson duly complied with these directions.

6

6. Matters came to a head earlier this month. The Minister wrote to Ms. Robertson on 6 th January 2011 saying:-

"Your client previously arrived in the State and presented herself as a South African national, Martha Kenny, who was issued with a deportation order under this identity.

Having considered all the information regarding your client, held on file and made known to us, I am to inform you that your application for further permission to remain in the State on behalf of your client is refused.

Your client should present herself to the Immigration Officer in Naas Garda Station on the 17 th January 2011."

7

7. Ms. Robertson's solicitors responded by stating that she refuted the allegations contained in the letter and seeking further particulars of the evidential basis for the contention made in respect of the Martha Kenny alias. Ms. Robertson duly presented herself to Naas Garda Station on the date in question, whereupon she was arrested by Detective Garda Hanrahan in circumstances I will later describe. On the 19 th January 2011 counsel for Ms. Robertson applied to me for an order pursuant to Article 40.4 of the Constitution for an inquiry into her detention. I made an order for such an inquiry in the course of which both the applicant and the two members of An Garda Síochána, Detective Garda David Hanrahan and Garda Aidan Loughnane gave evidence.

Section 3(9)(b) of the Immigration Act 1999
8

8. The principal question before me is whether Ms. Robertson was "ordinarily resident" in the State for the purposes of s. 3(9)(b) of the Immigration Act 1999 such as would require the Minister to have given the three month notice period stipulated by the sub-section. It is conceded that no such notice has been given.

9

9. Section 3(9)(b) provides:-

"A person who is ordinarily resident in the State and has been so resident for a period (whether partly before and partly after the passing of this Act or wholly after such passing) of not less than 5 years...

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