Seeruttun v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] IEHC 217 |
| Court | High Court |
| Date | 16 May 2013 |
[2013] IEHC 217
THE HIGH COURT
BETWEEN
AND
IMMIGRATION ACT 1999 S3(9)(A)(I)
IMMIGRATION ACT 1999 S5(1)
IMMIGRATION ACT 1999 S8
TROCI v GOVERNOR OF CLOVERHILL PRISON 2012 1 IR 514 2011/47/13422 2011 IEHC 405
IMMIGRATION ACT 1999 S5(1)(D)
O'HARA v CHIEF CONSTABLE OF THE RUC 1997 1 AER 129 1997 2 WLR 1 1997 1 CR APP R 447 1997 CRIM LR 432 1996 UKHL 6
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360 2000/11/4122
O (B F) v GOVERNOR OF DOCHAS CENTRE 2005 2 IR 1
LAVERY v MEMBER IN CHARGE CARRICKMACROSS GARDA STATION 1999 2 IR 390 1999 IESC 29
CRIMINAL JUSTICE ACT 1984 REG 8
CRIMINAL JUSTICE ACT 1984 REG 11
DUNNE v CLINTON 1930 IR 366
IMMIGRATION ACT 1999 (DEPORTATION) REG 2008 SI 55/2005 REG 7
E (G) v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41
DARCHIASHVILI v GOVERNOR OF MOUNTJOY WOMENS PRISON UNREP EDWARDS 23.6.2011 2011/11/2565 2011 IEHC 264
IMMIGRATION ACT 1999 (DEPORTATION) REGS 2005 SI 55/2005 REG 7
CONSTITUTION ART 40.4.2
IMMIGRATION ACT 1999 S5(5)
Constitutional Law – Legality of arrest and detention – Applicant subject to a deportation order – Art 40.2.4 Constitution
Facts: The case involved an enquiry under Art 40.4.2 of the Constitution as to the legality of the arrest and detention of the applicant, resulting from him lying about his address in regards to a deportation order against him.
There were two questions before the court, namely was there reasonable cause to suspect the applicant intended to evade deportation and also was the detention unlawful in nature.
Mac Eochaidh J held that when objectively assessed, from the standpoint of a reasonable person, the fact the applicant had lied and had only admitted to doing so once he had been exposed, signalled a risk to the Garda that he may evade deportation. Addresses on deportation orders had the crucial function of informing the authorities and were integral to their effectiveness. The applicant had breached the trust held in his assertions, bringing him into custody was therefore lawful.
The detention was deemed also deemed lawful. It was not necessary for the Garda in question to be practically involved in the plans for the deportation as claimed by the applicant. There was no infirmity with the manner in which the applicant had his rights to communicated to him. The contention that reg. 7 Immigration Act 1999 (Deportation) Regulations 2005 had been breached due to defects in notification was dismissed, the deficiency of being informed of a “prescribed place” of detention did not have a negative identifiable effect, and the Governor had been informed the detention would be until further notice.
No order for release was made pursuant to Art 40.2.4 of the Constitution, and the application for the release of the applicant was acceded to as court proceedings challenging the validity of the deportation proceedings were live.
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 16th day of May 2013
1. This is an enquiry under Article 40.4.2 of the Constitution into the legality of the arrest and detention of the applicant in respect of whom a deportation order was made.
2. The applicant argues the arresting garda did not have reasonable cause to suspect that the applicant intended to avoid removal from the State- that being the ground given. It is also said that the applicant's detention is unlawful because the authorities are not in a position to effect deportation within the 8-week period provided by statute. Other complaints are also made and I will address these in the course of the judgment.
3. The applicant and his wife are nationals of Mauritius who married in 1989. They have four children. The applicant's wife came to Ireland in September 2006 and has resided lawfully in the State until April 2013. (She is currently in the process of renewing her permission to be in the State). The applicant appears to have been lawfully in the State on a student visa but later returned to Mauritius. On 4 th May 2008, he came back to Ireland and applied for asylum. His appeal against a negative asylum decision issued from the Refugee Appeals Tribunal in June 2009 and a proposal to deport him was communicated to him in July 2009. He applied for subsidiary protection and leave to remain in August 2009 and refusals issued in May 2012. A deportation order was signed on 17 th May 2012 and he was notified of this by letter dated 23 rd May 2012. Proceedings challenging the deportation order issued on 8 th June 2012, and an undertaking was given not to deport the applicant. This undertaking was withdrawn on 30 th July 2012.
4. Persons in the position of the applicant are required to come to the Garda National Immigration Bureau ("GNIB") on Burgh Quay in Dublin at regular intervals. Letters referred to as 'presentation letters' call proposed deportees to the Burgh Quay offices at a specified time and date. These letters, in respect of this applicant, have stated:
"For the purpose of ensuring your deportation from the State pursuant to s. 3(9)(a)(i) of the Immigration Act 1999 as inserted by the Illegal Immigrants (Trafficking) Act 2000, I require you to present yourself at GNIB on 12 July 2012 at 14.00 in order to facilitate your deportation from the State."
I am to remind you that you are required to reside at the above address pending your removal from the State.
You may be directed to present yourself at such other time and place as directed by a member of An Garda Síochána.
If you fail to comply with any provision of the Deportation Order or with any requirement in this notice, an Immigration Officer or a member of the Garda Síochána may arrest and detain you without warrant in accordance with s. 5, sub-section (1) of the Immigration Act 1999, as amended by the Illegal Immigrants (Trafficking) Act 2000. It is also an offence under s. 8 of the Immigration Act 1999 to obstruct or hinder a person authorised by the Minister to deport you from the State. Yours sincerely. "[empahsis in original]
5. The applicant received presentation letters for 12 th July 2012, 2 nd August 2012, 11 th September 2012,1 st November 2012, 13 th December 2012, 24 th January 2013, 7 th February 2013, 7 th March 2013 and 16 th April 2013. (Each of the letters note that the address of the applicant as 'Flat 6, 10 Mountjoy Square, Dublin 1').
6. On the recitation of the facts thus far, one can see that the applicant has been in Ireland for approximately five years in pursuit of asylum status and subsidiary protection or leave to remain. Following elaborate process, he was unsuccessful and the State has decided to deport him. Persons in like position are given the opportunity to leave the State voluntarily. Where this option is not taken, the deportation process commences. Ireland does not incarcerate persons intended to be deported unless neccessary. Instead, a regime of regular reporting to the authorities exists. An important aspect of this regime is that the authorities know where the proposed deportee lives. It is not surprising, therefore, that the Presentation letters always remind persons of the requirement to reside at the address that they have given. The controversy in this case relates to that.
7. When the applicant presented at the GNIB on Burgh Quay on 16 th April 2013, Detective Garda Cullen met him and asked if he was still living at Flat 6, No. 10 Mountjoy Square. The garda had received information that the applicant was in fact living with his wife on Gardiner Street. The applicant confirmed that he was living at 10, Mountjoy Square and said that he was prepared to show the gardaí where he was living. He indicated his willingness to accompany Detctive Garda Cullen to Mountjoy Square. When asked did he have a key, he said that he did not, but that his friend, with whom he lived and who worked in a shop on Dorset Street, had a key. He telephoned his friend in advance of travelling there with the gardaí. They left Burgh Quay in an unmarked car and went to the shop on Dorset Street. The applicant and his friend spoke - probably in Creole Mauritian. The Detective Garda conversed with the applicant's friend who informed him that the applicant did not live at the Mountjoy Square address and had never lived there. The applicant admitted to lying. Det. Garda Cullen decided to arrest the applicant pursuant to section 5(1) of the Immigration Act 1999. The terms of that provision are as follows:
2 "5.-(1) 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 a 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."
8. I questioned Det. Garda Cullen, who gave evidence in this matter, about why he arrested the applicant and he said that the reason a person who is proposed to be deported might give a false address is to evade deportation if officials call to the given address to effect the deportation order. Det. Garda Cullen also informed the court that had the enquiry as to the address of the applicant been benign, he would...
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