Tareeq Omar v Governor of Cloverhill Prison

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date17 December 2013
Neutral Citation[2013] IEHC 579
Docket Number[2013 No. 1968 SS]
Date17 December 2013
Omar v Governor of Clover Hill Prison
BETWEEN/
TAREEQ OMAR
APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON
RESPONDENT

[2013] IEHC 579

[No. 1968 SS/2013]

THE HIGH COURT

CONSTITUTIONAL LAW

Legality of detention

Legality of arrest - Deportation orders - Garda entry of dwelling of failed asylum seekers - Transfer to airport under garda escort - Power to arrest - Power to enter premises - Whether implied licence to enter premises - Whether implied licence exceeded - Whether fact applicant was in unlawful custody at time of arrest rendered arrest unlawful - Contingency of detention on validity of arrest - Re Article 26 and Electoral (Amendment) Act [1984] IR 268; The People (Attorney General) v Hogan (1972) 1 Frewen 260; Director of Public Prosecutions v Forbes [1994] 2 IR 542; Director of Public Prosecutions (Dooley) v Lynch [1998] 4 IR 437; Director of Public Prosecutions v Sullivan [2007] IEHC 248, (Unrep, Herbert J, 31/7/2007); Director of Public Prosecutions v Gaffney [1987] IR 193; Director of Public Prosecutions (Riordan) v Molloy [2003] IESC 17, [2004] 3 IR 321; Freeman v Director of Public Prosecutions [1996] 3 IR 565; Director of Public Prosecutions v Delaney [1997] 3 IR 453; The People v O'Brien [2012] IECCA 68, (Unrep, CCA, 2/7/2012); Director of Public Prosecutions v Dunne [1994] 2 IR 537; The People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64, (Unrep, CCA, 11/5/2012); The People (Director of Public Prosecutions) v Coffey [1987] ILRM 727; Dunne v Clinton [1930] IR 366; Austin v United Kingdom [2012] Crim LR 544; The People (Director of Public Prosecutions) v O'Loughlin [1979] IR 85; The People (Director of Public Prosecutions) v Bolger [2013] IECCA 6, (Unrep, CCA, 14/3/2013) and Oladapo v Governor of Cloverhill Prison [2009] IESC 42, [2009] 2 ILRM 166 considered - Immigration Act 1999 (No 22), ss 5 and 15 - Constitution of Ireland 1937, Art 40.5 - Release directed (2013/1968SS - Hogan J - 17/12/2013) [2013] IEHC 579

Omar v Governor of Cloverhill Prison

Facts: The applicant was a Tanzanian national who had arrived in Ireland in April 2005 with his wife. Their son was born a month later in Ireland. The family applied for asylum but were unsuccessful and deportation orders were eventually made, which had the effect of disentitling all three of them from remaining within the State after the 12 th October 2013. The applicant was informed by letter that he and his family were to present themselves at Henry Street Garda Station in Limerick on the 14th November 2013 to facilitate their deportation; however, members of An Garda Síochána arrived at the family home on the 7th November 2013 and demanded that the family accompany them from Limerick to Dublin airport. Once at the airport, the applicant was arrested on the ground that he had an intention to avoid removal from the State pursuant to s. 5(1)(d) of the Immigration Act 1999 ('the 1999 Act'). The applicant subsequently brought an application for an inquiry under Article 40.4.2 of the Constitution into the legality of his detention.

The applicant argued that although he was formally arrested at Dublin airport, he was under a form of arrest from the time Gardaí required him to accompany them from his home. Under s. 5(1)(a) of the 1999 Act, Gardaí could arrest and detain without warrant a person who was the subject of a deportation order if that person had failed to comply with the terms of the deportation order. It was clear that the deportation order had required the applicant to leave the State by the 12 th October 2013. However, the applicant argued that Gardaí had no express power to enter a private dwelling for the purpose of giving effect to a deportation order.

Held by Hogan J. that the actions of the Gardaí were unlawful rendering the applicant"s detention illegal. It was noted that pursuant to Article 40.5 of the Constitution of Ireland, 'the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law' and that this right applied to all persons within the State regardless of their status or nationality. It was also found that the Garda had no express power to enter a private dwelling for the purpose of giving effect to a deportation order.

In the present case, it was said to be clear that the applicant and his family had been put under a form of restraint by Gardaí upon their arrival. Further, it was found that the Gardaí in question had no search warrant to enter the applicant"s dwelling for the purposes of a search, no arrest warrant under the Immigration Acts, and no consent from the applicant or his wife to restrain their actions in the way in which they did. The applicant and his family had certainly not consented to being transferred to Dublin airport. As a consequence, the applicant was already in unlawful custody by the time he was formally arrested at Dublin airport. It was, therefore, held that the applicant"s arrest at Dublin airport and his subsequent detention was illegal pursuant to the judgment in Oladapo v. Governor of Cloverhill Prison [2009] IESC 42, which was considered to be a case that was indistinguishable from the facts in the applicant"s case. It was also found that even if Gardaí had a search warrant under the Immigration Acts to enter the applicant"s dwelling home, the entry would have become unlawful at the point Gardaí sought to put the applicant under a form of restraint that amounted to an unlawful arrest. Because the applicant"s arrest had been deemed invalid and his detention rendered unlawful, it was ordered that he be released pursuant to Article 40.4.2 of the Constitution

Applicant"s release from detention directed under Article 40.4.2 of the Irish Constitution

IMMIGRATION ACT 1999 S5(1)

IMMIGRATION ACT 1999 S5(1)(A)

IMMIGRATION ACT 1999 S5(1)(D)

CONSTITUTION ART 40.5

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 268

AG, PEOPLE v HOGAN 1972 1 FREWEN 360

CRIMINAL LAW ACT 1997 S3

CRIMINAL LAW ACT 1997 S6

CRIMINAL LAW ACT 1997 S6(2)

CRIMINAL LAW ACT 1997 S2

IMMIGRATION ACT 2004 S15

ALIENS ACT 1935 S7

IMMIGRATION ACT 2003 S4

ALIENS ACT 1935 S7(5)

IMMIGRATION ACT 2004 S15(4)

DPP v FORBES 1994 2 IR 542 1993 ILRM 817 1993/7/1854

DPP (DOOLEY) v LYNCH 1998 4 IR 437 1998/15/5697

DPP v O'SULLIVAN 2007 IEHC 248

DPP v GAFFNEY 1987 IR 173 1986 ILRM 657 1986/5/423

DPP (RIORDAN) v MOLLOY 2004 3 IR 321 2003 IESC 17

FREEMAN v DPP 1996 3 IR 565 1997/3/1019 1996 IEHC 61

CASEY CONSTITUTIONAL LAW IN IRELAND 3ED 2000 513

CONSTITUTION ART 40

DPP v DELANEY & ORS 1997 3 IR 453 1998 1 ILRM 507 1998/4/896

DPP v DUNNE 1994 2 IR 537 1994/9/2621

DPP v CUNNINGHAM UNREP CCA 11.5.2012 2012/11/3065 2012 IECCA 64

CONSTITUTION ART 40.4.2

DPP v COFFEY 1987 ILRM 727

DUNNE v CLINTON 1930 IR 366 1 FREWEN 563

AUSTIN v UNITED KINGDOM 2012 CRIM LR 544 2012 32 BHRC 618 2012 ECHR 39692/09 2012 AER (D) 208 (MAR)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 5

CONSTITUTION ART 40.4.1

DPP v O'LOUGHLIN 1979 IR 85

DPP v BOLGER UNREP CCA 14.3.2013 2013 IECCA 6

OLADAPO v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 20.5.2009 2009 2 ILRM 166 2009/43/10766 2009 IESC 42

IMMIGRATION ACT 2004 S13

1

1. Where members of An Garda Síochána arrive late at night at the private dwelling of failed asylum seekers and require the three family members (including a seven and half year old boy) to accompany them while they make the trip from Limerick to Dublin Airport under Garda escort can it be said that the three family members are thereby under a form of arrest? This is in essence the principal question which arises in this application for an inquiry under Article 40.4.2 of the Constitution into the legality of the detention of one of those family members, Tareek Omar, the husband of Sheilah Omar and the father of Tevin Omar.

2

2. The Omars arrived in Ireland in April, 2005 and their son, Tevin, was born here in May, 2006. He, in fact, has lived here all his life and has never left the State. Up to the events of 7 th November, 2013, and 8 th November, 2013 (which I am about to describe), he was in second class in a primary school in Limerick. On the 17 th September, 2013, however, the Minister for Justice and Equality made deportation orders in respect of all three family members. It followed, therefore, that none of three members of the family had any entitlement to be in the State after 12 th October, 2013, which was the date specified in the deportation order as the date on which they were required to leave the State.

3

3. The family had then been required to present at Garda National Immigration Bureau in Dublin on 15 th October, 2013, with which requirement they duly complied. At the request of their solicitor, Ms. Ryan, it was agreed that they could thereafter present themselves at Henry Street Garda Station in Limerick. On 24 th October, 2013, all three family members were informed by letter that they were next to present at Henry Street on 14 th November, 2013, "in order to facilitate your deportation from the State."

4

4. That letter also stated that:

"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(1) of the Immigration Act 1999, as amended by the Illegal Immigrants (Trafficking) Act 2000."

5

5. Before considering in any detail the facts giving rise to the present application, it is necessary first to set out the powers of arrest and entry in relation to immigration matters which have been granted to the Gardaí by the Oireachtas.

The power to arrest
6

6. It is, however, critical to an understanding of the factual and legal issues which arise in this case to appreciate the power to arrest a person...

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