State (Bouzagou) v Fitzgibbon St. Garda Station

JurisdictionIreland
CourtHigh Court
JudgeJustice Barrington
Judgment Date01 January 1986
Neutral Citation1985 WJSC-HC 1761
Docket NumberRecord No. 261SS/1985
Date01 January 1986

1985 WJSC-HC 1761

THE HIGH COURT

Record No. 261SS/1985
BOUZAGOU v. STATION SERGEANT
BETWEEN:-
THE STATE AT THE PROSECUTION OF AHMED BOUZAGOU
Prosecutor

and

THE STATION SERGEANT FITZGIBBON STREET GARDASTATION
Respondent
AND IN THE MATTER OF THE HABEAS CORPUS ACT 1782 AND IN THEMATTER OF THE CONSTITUTION

Citations:

ALIENS (AMDT) ORDER 1975 ART 3 SI 128/1975

ALIENS ACT 1935

ALIENS ORDER 1946 SRO 395/1946 ART 5(2)

ALIENS ORDER 1946 SRO 395/1946 ART 5(4)

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 41

CONSTITUTION ART 42

MESKELL V CIE 1973 IR 121

NORTHAMPTON COUNTY COUNCIL V ABF 1982 ILRM 164

Synopsis:

ALIEN

Landing permission

Refusal - Validity - Absence of visa - Absence of means of support - adequate grounds for refusal - Alien married in Ireland - Matrimonial home in Ireland - Alien already barred from matrimonial home - Alien returning from visit abroad - Aliens Order, 1946, article 5 (4) - (1985 No.261 SS - Barrington J. - 26/7/85)

|The State (Bouzagou) v. Station Sergeant|

CONSTITUTION

Personal rights

Liberty - Alien - Landing permission - Refusal - Grounds of refusal - Absence of visa and of adequate means of support - Sufficient grounds for refusal - Alien married in Ireland - Matrimonial home in Ireland - Alien already barred from matrimonial home - Alien returning from abroad - Aliens Order, 1946, article 5(4) - (1985 No. 261 SS - Barrington J. - 26/7/85)

|The State (Bouzagou) v. Station Sergeant|

1

JUDGMENT OF Mr. Justice Barringtondelivered the 26th day of July 1985

2

This is an application for Habeas Corpus brought by the Prosecutor who is a Moroccan national, who was refused leave to land at Dublin Airport on the 11th of May 1985, and who was subsequently detained in Fitzgibbon Street Garda Station pending his deportation.

3

The Prosecutor was served with a Notice of Refusal of Leave to Land under the Aliens Act 1935by Mr. Brian Duane the Immigration Officer at Dublin Airport on the 11th of May 1985. The Notice was in the following form:-

"Aliens Act 1935"

4

Notice of Refusal of Leave to Land. To Ahmad Bouzagou.

5

This is to inform you that you are being refused leave"to land in accordance with the provisions of the Aliens Act 1935, and the Aliens Orders, 1946 and 1975. You are being refused leave to land because I am satisfied that not being a citizen of a State specified in the Sixth. Schedule to this Order you are not the holder of a valid Irish visa and that you are not in a position to supportyourself.

6

You will be detained in Fitzgibbon Street Garda Station until such time, being as soon as practicable, as you are removed from the State.

7

Signed

8

Brian Duane

9

Immigration Officer".

10

The Prosecutor is a Moroccan national. He was born at Casablanca on the 19th of December 1953. He first came to Ireland as a visitor in 1977. Prior to that, he was a student at an English language school in Cambridge, England. Whilst on holidays in Ireland in 1977 he met his wife Martine Hardiman-Bouzagou, an Irish Citizen. They were married in Dublin on the 7th of June 1979. There are two children of the marriage -Rachaid born on the 15th of July 1979 and Mohand born on the 2nd of December 1981.

11

In the affidavit grounding his application for a primary Order of Habeas Corpus the Prosecutor swore -

"My family home is situate at 61 Cromcastle Court, Coolock, Dublin 5, and I say that I Lived at the said address with my family. Prior to the month of July 1983, I say that I was a registered alien within the State, and had obtained a work permit from the Department ofLabour."

12

In or about the end of 1982 the Prosecutor's Moroccanpassport expired. He informed the Aliens Section of the Department of Justice of this fact. He says he spoke With Mr. Peadar O'Toole, Assistant Principal Officer in the Department of Justice who, he swears, "represented to me that I would be allowed return to Ireland once my passport had been renewed. I say that this representation was given to me both orally and in writing. Mr. O'Toole wrote on my Aliens Registration documents words to this effect". At the time of the application for the primary Order he was not in a position to produce this document as it had been taken from him at Dublin Airport.

13

In July 1983 the Prosecutor went to London to have his passport renewed at the Moroccan Embassy. However, he was arrested by United Kingdom Immigration Officials and deported to Morocco because, he says, he was not the holder of a valid passport. He swore that it had taken approximately two years for him to get a new passport in Morocco as the Moroccan authorities needed proof that he was resident and married in Ireland. He swore that during this time he had been in written communication with his wife and children in Ireland. Eventually a new passport was issued to him in March 1985 and he then travelled to Ireland via Italy and France arriving on the 11th of May 1985 to be served with a Notice of Refusal to Land in the circumstances alreadyindicated.

14

On this recital of the facts it appeared that the Prosecutor -and also his family - had been the victims of some form of administrative muddle and this was the case properly made on his behalf by his Counsel, on the basis of his instructions, at the time Of the Original application to me. It was on this basis that I made the primary Order under Article 40 of the Constitution.

15

The Respondent by his certificate dated the 16th of May 1985 certified that the Prosecutor was being held at Fitzgibbon Street Garda Station pending the making of arrangements for his removal from the State and produced an Order of Liam Gavin, Immigration Officer, made under Article 5 (4) of the Aliens Order 1946 (as inserted by Article 3 of the Aliens (amendment) Order 1975) directing that the Prosecutor be held at Fitzgibbon Street Garda Station pending the making of arrangements for his removal from the State.

16

The Respondent's certificate was supported by an affidavit sworn by Mr. Brian Duane who was the Immigration Officer at Dublin Airport who interviewed the Prosecutor on his arrival. From this affidavit and from the Prosecutor's certificate of registration which was exhibited in it, it appeared that the endorsement, on the Prosecutor's certificate of registration was not as represented by him. It was dated the 4th of February 1982 and was in the following form -

"The holder called to this office today, 4/2/82 and stated that he will travel to the Moroccan Embassy London England in about one week's time to rave his Moroccan passport revalidated.

On his return he will call to this office.

He is presently residing at 6 1 Cromcast le Court Coolock Dublin 5 (signed) John Fagan A.O."

17

It also appeared that the latest date on which the Prosecutor would have been entitled to reside in the State was the 30th of June 1982 so that if he remained in the State until July 1983 he remained as an illegalimmigrant.

18

When Mr. Duane interviewed the Prosecutor he observed thatthe Prosecutor did not have a valid visa and asked him why he failed to- obtain a visa. His explanation was to the effect that his family was Irish and he believed he did not require one.

19

In reply to a question from Mr. Duane as to why he had come to this country the Prosecutor replied that he was returning to reside here permanently with his family.

20

Mr. Duane asked him as to what moneys he had in his possession....

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