Oladapo -v- The Governor of Cloverhill Prison, [2009] IESC 42 (2009)

Docket Number:52/09
Party Name:Oladapo, The Governor of Cloverhill Prison
Judge:Murray C.J.
 
FREE EXCERPT

THE SUPREME COURT

Murray C.J. 52/09

Denham J.

Fennelly J.

BetweenCOLLINS B. OLADAPOAPPLICANT/APPELLANT

-v-

THE GOVERNOR OF CLOVERHILL PrisonRESPONDENTAND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMNOTICE PARTY

JUDGMENT of Murray C.J. delivered on the 20th day of May 2009

This is an appeal from the order of the High Court which refused an application by the appellant, pursuant to Article 40.4 of the Constitution, for his release from Cloverhill Prison where he was detained in the custody of the respondent.

At a hearing before this Court on the 26th day of March 2009, the appeal was allowed and an Order made directing the release of the appellant pursuant to Article 40.4 of the Constitution. It was stated that the reasons for that decision would be given later. In this judgment I set out the reasons why I considered that the appeal be allowed and the order pursuant to Article 40.4 made.

The appellant was detained by the respondent on foot of a detention order made by Garda Philip McGovern on the 15th February 2009 pursuant to s. 5(2) of the Immigration Act 2003. The detention order was made on the grounds that the appellant had been refused permission to enter the State and he was detained pending the making of arrangements for his removal from the State.

Background Facts

The grounds upon which the appellant claims that his detention was unlawful are referred to later. First of all I wish to summarise the most relevant background facts.

The appellant is a Nigerian national. He first came to Ireland in August 2002. He resided in Dundalk, Co. Louth, with his wife and a daughter who was born in Ireland in February 2002. Since then they have had two further children born in Ireland in 2003 and 2008. Both the appellant and his wife applied for asylum on their arrival in Ireland. Both withdrew their applications for asylum and instead made separate applications for residency pursuant to the "Irish Born Child Scheme" put in place by the Minister. The appellant's wife was granted residency under that scheme (IBC 05) in March 2005. The application made by the appellant, who had returned to Nigeria for a period, was made after the deadline for the submission of such applications under the scheme and could not be considered. Since the time of his first arrival in the State the appellant has left the State on a number of occasions including returns to Nigeria as well as leaving the State to go to Northern Ireland from time to time. When in Nigeria in 2007 he wrote to the notice party confirming that he had "settled down permanently in Nigeria and [was] currently engaged in business". The most recent period which he spent in Nigeria was from Summer 2007 until November 2008. During the latter month he returned to Ireland via Northern Ireland and took up residence again with his wife and children. On February 13th 2009 the appellant had made a submission to the notice party pursuant to s. 3 of the Immigration Act, 1999 as to why he should be permitted to remain in the State.

For present purposes it is sufficient to state that since his return to Ireland in 2008 he has been, and remains, by virtue of s. 5(2) of the Immigration Act 2004, unlawfully present in the State as a non-national without a permission given to him by or on behalf of the Minister to be in the State.

On the 14th February 2008 the appellant left the State by crossing the border and going to Northern Ireland for the purpose of doing some shopping. Having completed his shopping he re-entered the State, driving his own car, with the intention of returning to his home in Dundalk. His car was stopped in a housing estate in Dundalk by Garda Philip McGovern to whom the appellant admitted that he had been in Northern Ireland shopping. Garda McGovern requested the appellant to produce a valid passport and visa and, with regard to his entry into the State that day, to produce a Garda National Immigration Bureau card. The applicant failed to produce either a passport or a Garda National Immigration card.

The garda member then arrested the appellant pursuant to s. 13 of the Immigration Act 2004 and took him to Dundalk garda station. Some time later he was denied permission to land by Garda McGovern who for the purpose of the Immigration Acts was also an immigration officer. That refusal was made pursuant to s. 4(3)(e) and (g) of the Immigration Act 2004. A "permission" to land is an authorisation to a non-national to land or be in the State and such permission may be given to the non-national in a document or placed on his or her passport or other equivalent document with an inscription authorising the person to land. (See s. 4(1) of the Immigration Act 2004).

Following upon the refusal to grant permission to land to the appellant Garda McGovern arrested him in the garda station pursuant to s. 5(2) of the Immigration Act 2003 as amended by s. 16 of the Immigration Act 2004.

The appellant was detained overnight in the garda station at Dundalk and on the following day, 15th February 2009, Garda McGovern issued a warrant pursuant to the aforesaid provisions for the detention of the appellant in Cloverhill Prison pending the making of arrangements for his removal from the State. Since then he had been detained in Cloverhill Prison on foot of that warrant.

The appellant having applied to the High Court for an inquiry into the lawfulness of his detention pursuant to Article 40.4 of the Constitution the respondent justified the lawfulness of the appellant's detention by producing and relying on the warrant issued by Garda McGovern. In the High Court the learned trial judge found, contrary to the submissions of the appellant, that he was lawfully detained by the respondent pursuant to the warrant issued by Garda McGovern and that the lawfulness of that detention was not affected by the Court's finding that the period of the appellant's detention in Dundalk garda station prior to his arrest pursuant to s. 5 of the Immigration Act 2003, following the refusal of permission to land, was unlawful.

It will be necessary, for the purposes of addressing the issues raised by the appellant in this appeal, to refer in greater detail to the evidence and facts concerning the initial arrest of the appellant in the course of his detention in Dundalk garda station. Before referring to these matters I wish to refer to the grounds relied upon by the appellant for his contention that his detention was unlawful and to the relevant statutory provisions.

Grounds

The first ground of appeal argued on behalf of the appellant is that the initial arrest of the appellant by Garda McGovern pursuant to s. 13 of the Act of 2004 was unlawful because it was not made for the purpose of charging the appellant with the offence for which he was arrested but for the ulterior purpose of bringing him to the garda...

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