Robert Grackovs v Governor of Wheatfield Prison and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] IEHC 528 |
| Court | High Court |
| Date | 16 May 2013 |
[2013] IEHC 528
THE HIGH COURT
BETWEEN
AND
AND
CONSTITUTION ART 40.4.2
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(1)(A)(iv)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(1)(C)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(1)(D)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(2)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(3)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(3)(B)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(4)(A)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 20(4)(D)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 21
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 26(1)
CRIMINAL JUSTICE ACT 1960 S6
DPP v ALEXIOU 2003 3 IR 513 2003/13/2830
O'MALLEY SENTENCING LAW & PRACTICE 1ED 2000
MURPHY, STATE v KIELT 1984 IR 458
M (T) v GOVERNOR OF MOUNTJOY PRISON 2011 4 IR 621 2011/34/9396 2011 IEHC 336
MCDONAGH, STATE v FRAWLEY 1978 IR 131
O LAIGHLEIS, IN RE 1960 IR 93
DPP, PEOPLE v WALSH 1980 IR 294 1980/1/151
CONSTITUTIONAL LAW
Habeas corpus
Inquiry into lawfulness of detention - Warrants in respect of custodial sentences - Temporary release - Removal order - Notification requirements - Conditions of temporary release - Action taken on foot of unlawful order tainted with illegality - Whether notice provisions concerning proposal to make removal order complied with - Whether granting of temporary release lawful - Whether detention to serve out remaining part of custodial sentences lawful - People (Director of Public Prosecutions) v Alexiou [2003] 3 IR 513; The State (Murphy) v Kielt [1984] IR 458; M v Governor of Mountjoy Prison [2011] IEHC 336, [2011] 4 IR 621; The State (McDonagh) v Frawley [1978] IR 131; In Re ÓLaighléis [1960] IR 93 and The People (Director of Public Prosecutions) v Walsh [1980] IR 294 considered - European Communities (Free Movement of Persons) Regulations 2006 (SI 226/2006), arts 20 and 26 - Criminal Justice Act 1960 (No 27), s 6 - Immigration Act 1999 (No 22), s 3 - Constitution of Ireland 1937, Art 40.4.2 - Legality of detention upheld (2013/838SS - McDermott J - 16/5/2013) [2013] IEHC 528
Grackovs v Governor of Wheatfield Prison
Facts State officials had examined the case of the applicant and had concluded that the applicant had demonstrated a flagrant disregard for the laws of the State and had committed a number of offences suggesting a high propensity to re-offend and a removal order with an exclusion period of five years was recommended. The applicant had been serving a prison sentence and received a full temporary release on condition that he was removed from the State. At Dublin Airport he resisted attempts to place him on the aircraft, was arrested and returned to prison where he was detained pending his removal from the State. The applicant sought to challenge his detention and contended that he was being unlawfully detained. It was further contended that he had not been notified of the grounds for his removal and had been given no opportunity to address same.
Held by McDermott J in holding that the detention of the applicant was lawful: The events leading up the attempted removal were unlawful as the applicant had not been properly notified of the intended removal. However, there were still in existence a number of warrants directing the applicant”s imprisonment to serve sentences lawfully imposed following convictions in the District Court. The court was satisfied that the temporary release order would not have been made if the applicant had not agreed to comply with the conditions set out in the notice. It had been made clear to the applicant that the balance of his sentence would not have to be served if he left the state immediately after his release from prison. The court was not satisfied that there was any lawful reason why the applicant should not be expected to serve out the remaining part of the sentences that he was directed to serve.
JUDGMENT of Mr. Justice McDermott delivered on 16th day of May, 2013
1. On 14 th May, 2013, following an inquiry into the lawfulness of the detention of the applicant pursuant to Article 40.4.2 of Bunreacht na héireann, the court refused an application for the applicant's release and determined that his detention was in accordance with law. The following are the reasons for that decision.
2. The applicant is a Latvian national born on 28 th February, 1980. At the time of the initial application made to the court on the morning of 8 th May, 2013, he was a prisoner in the custody of the respondent serving sentences imposed by the District Court in respect of warrants issued on 5 th February, 2013, 12 th February, 2013 and 25 th March, 2013. Sentences of nine months, six months and five months imprisonment respectively were imposed on each of the warrants and the sentences were to run concurrently. No issue arises in respect of the lawfulness of these convictions or the warrants upon which the applicant was committed to prison. The challenge to the lawfulness of the applicant's detention is based on events of 8 May, 2013. He was granted "full temporary release" on that date on condition that he accompany officers of the Garda National Immigration Bureau to Dublin Airport pursuant to an order directing his removal from the state. At Dublin Airport he resisted attempts to place him on the aircraft, was arrested and returned to prison where he was detained pending his removal from the state. The applicant's temporary release was purportedly revoked and his imprisonment pursuant to the orders of the District Court was resumed. The hearing was adjourned by consent to Monday, 13 th May, 2013, to enable the respondent to file a number of affidavits in response to the applicant's affidavit and the delivery of any further replying affidavits by the applicant. The case proceeded on 13 th and was adjourned to 14 th May, 2013. The court determined that the detention of the applicant was lawful at the conclusion of the hearing.
3. On 26 th October, 2011, Det. Inspector Ryan of the Garda National Immigration Bureau applied to the third named notice party for a removal order under Article 20 of the European Communities (Free Movement of Persons) Regulations 2006, in respect of the applicant. Article 20(1)(a)(iv) of the Regulations enables the Minister by order to require a citizen of the European Union to leave the state within a specified time where:-
"In the opinion of the Minister, the conduct or activity of the person is such that it would be contrary to public policy or it would endanger public security or public health to permit the person to remain in the state."
Article 20(1)(c) enables the Minister to impose an exclusion period in a removal order directing that a person shall not re-enter or seek to re-enter the state during the validity of that period. Article 20(1)(d) provides that the Minister shall not, except on grounds of public order, security or public health, make a removal order solely on the basis that the person concerned has served a custodial sentence. Further, a removal order may not be enforced after the expiry of more than two years from the date upon which it was made unless the Minister is satisfied that the circumstances giving rise to the making of the order still exist.
4. Article 20(2) of the Regulations provides that when the Minister proposes to make a removal order, the person concerned must be notified in writing of this proposal. The notification must state the reasons giving rise to the proposal and permit the person concerned to make representations within fifteen working days. The proposed duration of the exclusion period must also be included in the notice. Article 20(3) sets out various matters which the Minister is obliged to take into account in deciding whether to impose an exclusion period. Article 20(3)(b) provides that where the Minister decides to make a removal order, the person concerned must be notified in writing of the decision and the reasons upon which it is based.
5. Under Article 20(4)(a) a person to whom notice of the making of an exclusion order has been issued may, without further notice, be arrested and detained under warrant by an immigration officer or a member of An Garda Síochána in a specified place for the purpose of ensuring his or her departure from the state in accordance with the terms of the order. A person arrested may be placed on an aircraft about to leave the state by an immigration officer or a member of An Garda Síochána and shall be deemed to be in lawful custody while so detained and until the aircraft leaves the state under Article 20(4)(d). Article 21 provides for the review of an exclusion order.
6. Article 26(1) sets out the manner in which notice is to be effected and provides:-
2 "26(1) Where a notice is required or authorised by or under these Regulations to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her -
(a) by delivering it to him or her, or
(b) by sending it by...
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