State (Clinch) ) v Station Sergeant, Fitzgibbon Street Garda Station

• Jurisdiction: Ireland
• Judgment Date: 26 July 1985
• Date: 26 July 1985
• Docket Number: [1985 No. 261 SS]
• Court: High Court

The State (Bouzagou) v. Station Sergeant, Fitzgibbon St.

The State (at the Prosecution of Ahmed Bouzagou)

and

Station Sergeant, Fitzgibbon Street Garda Station

[1985 No. 261 SS]

High Court

Constitution - Personal rights - Habeas corpus - Procedure specified by Constitution - Alien - Refusal of leave to land - Aliens Order, 1946 (No. 395), art. 5 clause 2 - Aliens (Amendment) Order, 1975 (No. 128), art. 3 - Aliens Act, 1935 (No. 14) - Constitution of Ireland, 1937, Article 40, s. 4, sub-s. 2; Articles 41, 42.

Article 5, clause 2, of the Aliens Order, 1946, as inserted by article 3 of the Aliens (Amendment) Order, 1975, provides that an immigration officer may refuse leave to land to an alien, provided that the officer is satisfied that the alien came from a place outside the State other than Great Britain or Northern Ireland, in circumstances where inter alia the alien is not in a position to support himself and is not in possession of a valid Irish visa.

Article 40 s. 4, sub-s. 2 of the Constitution provides that where any person makes complaint to the High Court, alleging that he is being unlawfully detained, the High Court shall forthwith enquire into the said complaint, and may order the custodian of such person to produce the body of such person before the Court, and to certify in writing the grounds of his detention. The said Article further provides that, unless satisfied that such person is being detained in accordance with the law, the High Court, upon production of his body before the Court, shall order his release. Article 41 of the Constitution guarantees, inter alia, to protect the family in its constitution and authority, and to guard with special care the institution of marriage. Article 42 of the Constitution acknowledges the family as the primary and natural educator of the child.

The prosecutor was a Moroccan national, married to an Irish citizen. Pursuant to the provisions of the said order he was served with a notice of refusal of leave to land at Dublin Airport and accordingly, was detained in Fitzgibbon Street Garda Station, pending his removal from the State. The grounds for refusal were stated in the notice to be the prosecutor's lack of a valid Irish visa and his inability to support himself. Pursuant to the provisions of Article 40, s. 4, sub-s. 2 of the Constitution, the prosecutor made complaint to the High Court, alleging that his detention was not in accordance with the law. He stated on affidavit that his reason for coming to this country was in order to reside here permanently with his wife and family and that he owned the family residence at Coolock, Co. Dublin. An order of habeas corpus was made requiring the respondent to produce the body of the prosecutor before the Court. Upon compliance with the said order, it emerged in evidence, inter alia, that the family home of the prosecutor was the property of Dublin Corporation, and further, that the prosecutor's wife possessed a barring order against him.

Held by Barrington J., in ruling that the prosecutor's detention was in accordance with the law, 1, that the reasons given by the Immigration Officer were valid and sufficient reasons for refusal of leave to land.

2. That the fact that the prosecutor did not own the family residence and that his wife had obtained a barring order against him was relevant in considering whether the prosecutor could support himself.

3. That a non-citizen is entitled to rely upon Articles 41 and 42 of the Constitution.

Northampton County Council v. A.B.F. [1982] I.L.R.M. 164 considered.

4. That the prosecutor could not automatically claim the rights guaranteed to the family under Article 41 of the Constitution, since his family was divided.

Cases mentioned in this report:—

The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567; (1966) 102 I.L.T.R. 1.

Northampton County Council v. A.B.F. and Anor. [1982] I.L.R.M. 324.

Byrne v. Ireland [1972] I.R. 241.

Meskell v. C.I.E. [1973] I.R. 121.

Educational Company v. Fitzpatrick and Ors. [1961] I.R. 323; (1960) 96 I.L.T.R. 161.

Somjee v. The Minister for Justice and Anor. [1981] I.L.R.M. 324.

Abdelkefi and Anor. v. The Minister for Justice and Anor. [1984] I.L.R.M. 138.

The State (Kugan and Anor.) v. Station Sergeant, Fitzgibbon Street(Unreported, High Court, Egan J., 1st July, 1985).

The State (Nanthakumarn and Anor.) v. Station Sergeant, Fitzgibbon Street (Unreported, High Court, Gannon J., 22nd October, 1984).

The State (Touray) v. The Governor of Mountjoy Prison (Unreported, High Court, McWilliam J., 14th December, 1984).

The State (Royle) v. Kelly [1974] I.R. 259.

The State (Yogamoorthy) v. The Minister for Justice (Unreported, High Court, Barron J., 19th October, 1984).

Habeas Corpus.

The facts have been summarised in the headnote, and they appear in the judgment, post.

On the 12th May, 1985, the prosecutor obtained in the High Court an order of habeas corpus, pursuant to Article 40, s. 4, sub-s. 2, of the Constitution.

On the 16th July, 1985, the respondent, in compliance with the said order, produced the body of the prosecutor before...