Troci v Governor of Clover Hill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 02 November 2011
• Neutral Citation: [2011] IEHC 405
• Docket Number: [2011 No. 2185 SS]
• Court: High Court
• Date: 02 November 2011

[2011] IEHC 405

THE HIGH COURT

[No. 2185 SS/2011]

Troci v Governor Of Clover Hill Prison

BETWEEN/

ERVIS TROCI

APPLICANT

AND

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 1999 S5(1)(D)

IMMIGRATION ACT 1999 S3(11)

OM v GOVERNOR OF CLOVERHILL PRISON UNREP HIGH 1.8.2011 2011 IEHC 341

WALSHE v FENNESSY 2005 3 IR 51

MCKEE v CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY 1997 AC 286

DALLISON v CAFFERY 1965 1 QB 348

IMMIGRATION LAW

Arrest

Lawfulness - Deportation order - Arrest and detention on suspicion intention of applicant to avoid removal from State - Powers of arrest - Reasonable cause - Test to be applied - Whether arrest lawful - Whether detention unlawful -Walshe v Fennessy [2005] IESC 51, [2005] 3 IR 516, O'Hara v Chief Constable of RUC [1997] AC 286, Dallison v Caffery [1965] 1 QB 348 and Om v Governor of Cloverhill Prison [2011] IEHC 341, (Unrep, Hogan J, 1/8/2011) approved - Immigration Act 1999 (No 22), ss 5(1)(d) and 3(11) - Constitution of Ireland, Article 40.4.2 - Release granted (2011/2185SS - Hogan J - 2/11/2011) [2011] IEHC 405

Troci v Governor of Cloverhill Prison

Facts: The applicant sought his release from Cloverhill Prison pursuant to Article 40.4.2 of the Constitution following his arrest pursuant to s. 5(1)d) Immigration Act 1999. He had sought asylum in the State and a deportation order had been later issued. He had responded to questions posted by members of the Garda National Immigration bureau at their offices that he did not intend to go home as he was married here in Ireland. The question arose whether a reasonable person might reasonably suspect that the applicant would try and evade deportation.

Held by Hogan J. that the legality of the detention turned on whether the arrest was lawful. Since the Court had concluded that it was not lawful, the Court would direct the release of the applicant pursuant to Article 40.4.2 of the Constitution. The respondent to the questions provided proved altogether too slender a basis to justify the arrest. A reasonable person would have cross-examined him further regarding his intentions to evade deportation and to comply with the deportation order.

Reporter: E.F.

1 1. This is an application brought under Article 40.4.2 of the Constitution by Ernest Troci, an Albanian national, for his release from Cloverhill Prison following his arrest pursuant to s. 5(1)(d) of the Immigration Act 1999 ("the 1999 Act"). The applicant is now aged 21 years of age. He arrived in the State just over four years ago on 1 ^st November 2007, whereupon he sought asylum by reason of an alleged involvement in a blood feud. His claim for asylum was ultimately rejected and it culminated in the making of a deportation order by the Minister for Justice on 21 ^st February, 2011.

2 2. In January, 2010 he met Sharon Healy, an Irish citizen, who works as a hotel receptionist in Killarney. Some months later they moved into an apartment together. In September, 2010 they gave notice of an intention to marry and they ultimately married on 1 ^st March, 2011: It is clear from the affidavit sworn by Ms. Healy that their wedding plans were entirely overshadowed by the making of a deportation order which was notified to Mr. Troci by letter dated 24 ^th February 2011. The couple were crushed and acutely disappointed by this news. The applicant was required to leave the State by 15 ^th March 2011.

3 3. The applicant's erstwhile solicitor applied to the Minister to revoke the deportation order pursuant to s. 3(11) of the 1999 Act. The applicant himself attended at the offices of the Garda National Immigration Bureau in Dublin on more than 15 occasions in accordance with directions given to him to attend. While he was legally obliged to comply with these directions, it should be noted nonetheless that he was obliged to travel a considerable distance on many occasions for this purpose.

4 4. In the early afternoon of 25 ^th October 2011 the applicant attended with his wife at the GNIB offices. On this occasion he was brought upstairs for an interview with two members of GNIB, Detective Garda Byrne and Detective Garda Boland. There is fundamentally little disagreement as to what happened next, as Detective Garda Byrne then made a contemporaneous note of the exchanges. Both Detective Garda Byrne and Detective Garda Boland, together with the applicant, all gave evidence before me.

5 5. The applicant was first asked if he were willing to travel home. He replied:-

"I am married here. I don't have the intention to go home."

6 6. There then followed this exchange:-

"Q.	It will be our intention to deport you. Are you willing to go home?
A.	No."

7 7. Both Detective Garda Byrne and Detective Garda Boland maintained that the applicant had raised the question of whether his passport was still in date. For his part the applicant said that he had simply stated that old Albanian passports (his passport was issued in 2006) were no longer valid by reason of some apparent change in either Albanian law or practice. At the end of the interview, however, he was informed that his application to remain on the basis of marriage to an Irish national had been refused. The Gardaí checked with the Department of Justice as to whether any High Court proceedings were outstanding as the applicant had stated, but he was then arrested pursuant to s. 5(1)(d)(as amended) of the 1999 Act once it was confirmed that there were no such proceedings.

8 8. The net issue before, therefore, is whether the arrest pursuant to s. 5(1)(d) was lawful. This sub-section provides as follows:-

"Where an immigration officer or a member of the Garda Síochána, with reasonable cause...