Trang v Governor of The Dóchas Centre

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 March 2018
• Neutral Citation: [2018] IEHC 211
• Date: 13 March 2018
• Court: High Court
• Docket Number: [2018 No. 310 S.S.] [2018 No. 311 S.S.]

[2018] IEHC 211

THE HIGH COURT

Humphreys J.

[2018 No. 310 S.S.]

[2018 No. 311 S.S.]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND

BETWEEN

NINH THU TRANG

APPLICANT

AND

THE GOVERNOR OF THE DÓCHAS CENTRE

RESPONDENT

AND

BETWEEN

THI PHUONG VU

APPLICANT

AND

THE GOVERNOR OF THE DÓCHAS CENTRE

RESPONDENT

Asylum, Immigration & Nationality – Constitution – Art. 40 of the Constitution – Inquiry order – Deportation order – Immigration detention – Art. 5 of the European Convention on Human Rights – Subsisting intention to deport

Facts: The applicants had applied ex parte for an inquiry under art. 40 of the Constitution. The applicants had challenged the validity of their detention in prison on the ground that there was no settled intention of the respondent to deport the applicants as the criminal proceedings against the applicants were pending determination.

Mr. Justice Richard Humphreys dismissed the application made by the applicants. The Court held that there was subsisting intention to deport as there was breach of obligations on the part of the applicants to comply with the immigration law, particularly to leave the State within the time specified in a deportation order.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of March, 2018

1 The applicants applied ex parte on 6th March, 2018 for an inquiry under Article 40 of the Constitution. I directed such an inquiry in each case and certificates were produced dated 8th March, 2018. In the case of Ms. Vu, there was an error in the original certificate and I gave liberty to file a corrected version. I have heard helpful submissions from Ms. Sunniva McDonagh S.C. (with Mr. Anthony Hanrahan B.L.) for the applicants and from Mr. John P. Gallagher B.L. for the respondent.

Facts in relation to Ms. Trang

2 Ms. Trang was born in 1995. She arrived in the State on the 1st or 2nd of March, 2015, depending on which version is to be accepted. She had a permission to remain until 3rd June, 2015 as a student. On 3rd August, 2017 she was detected unlawfully working in the State. A proposal to deport was issued dated 10th October, 2017 and a deportation order made on 24th November, 2017. She was arrested on 19th February, 2018 in the context of appearing before Bray District Court having been charged with immigration-related summary offences. She failed to either leave the State by the time specified in the deportation order or present herself in accordance with the notice served with the deportation order. She claims in an unsworn statement exhibited by her solicitor ' I did not know what to do with such deportation' (sic). She implies that she did not get a translation of the document and also said 'I believe that I fully comply with' (sic). It seems to me Mr. Gallagher's submission in relation to that statement as set out elegantly in his written submission is well-founded in that he contends that ' it would seem quite incredible that having received portentous correspondence of a self-evidently official kind, neither of the two applicants herein asked for or attempted even a basic translation of these letters. Ultimately, whatever the true state of their knowledge, on their own account it would seem that both applicants shrugged their shoulders and carried on, seemingly oblivious to the consequences of ignoring these significant developments. But it is respectfully submitted that this Honourable Court could equally arrive at the view that this ignorance is feigned', and that latter position seems to me much more likely in all the circumstances.

Facts in relation to Ms. Vu

3 Ms. Vu was born in 1996. She arrived in the State in 2014 apparently on a student permission, which lapsed on 20th September, 2016. Again, she was detected working unlawfully and a proposal to deport was made, and a deportation order was then made on 24th November, 2017. She again claims ignorance of the ramifications of this document having become aware of it and a similar situation applies as to the credibility of that statement. She also was arrested on 19th February, 2018.

Evidence

4 On behalf of the respondent, in relation to Ms. Trang, I have received affidavits of Mr. Tom Doyle, assistant principal in INIS and affidavits of D/Garda Deirdre Durcan of the GNIB, para. 9 of which refers to the subsisting intention to deport and of D/Garda Louise Clinton, who also refers to the subsisting intention to deport. In relation to Ms. Vu, there are affidavits of Mr. Doyle, D/Garda Clinton and D/Garda Orla Geoghegan who, at para. 9 refers to the intention to deport. On behalf of the applicants, affidavits have been sworn by their solicitor exhibits correspondence issued by that solicitor, and unexhibited correspondence has also been handed in dated 12th and 13th March, 2018.

Is there a current valid intention to deport?

5 Ms. McDonagh relies on the Court of Appeal judgment in C.A. v. Governor of Cloverhill [2017] IECA 46 (Unreported, Court of Appeal, 27th February, 2017), per Hogan J., paras. 6-7, which refers to the exceptionality of ' preventative civil detention'. In J.A. v. Governor of Cloverhill (No. 2) [2017] IEHC 610 [2017] 10 JIC 2011 (Unreported, High Court, 20th October, 2017), at paras. 17-22, I previously endeavoured to explore whether the concept of preventative detention was necessarily always applicable to immigration-based detention and I read the Supreme Court decision in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19 [2000] 2 I.R. 360 as suggesting not.

6 The other qualification to jurisprudence on the need for a settled intention to deport is that that jurisprudence very much predates the International Protection Act 2015. Therefore the references to the need for an intention to deport within eight weeks seem to me now to be qualified by the understanding that the intention to deport must be to effect the deportation within such time as may be provided under the Immigration Act 1999, as amended by the 2015 Act, which could potentially include an extension of time beyond the 8 weeks by virtue of the amendments made by the latter Act. However, that is not a matter directly at issue in these proceedings.

7 Ms. McDonagh submitted that because of the pending District Court proceedings which are next due before the court eight weeks from the original arrest, it could not be the case that there was a settled intention to deport within the eight week period, assuming that to be required. However the respondent's deponents averred that the criminal matters can be ' readily brought forward' and in the absence of any cross-examination of those deponents, it seems to me that I can and indeed should accept that evidence. They also averred that the subsisting charges do not disturb the intention to deport and again I consider I should accept that evidence. Ms. McDonagh in submissions questioned the mechanics of how this would be done but it seems to me that any effective challenge to that evidence would have to be by cross-examination, which was not availed of here. In any event the mechanics have pretty much been clarified by the respondent's submission and it is reasonably clear that the proposed...