THE HIGH COURT
			2000 No. 447 JR
BETWEEN
D. P.
	 		APPLICANT 
AND
THE GOVERNOR OF THE TRAINING UNIT, MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS	
JUDGMENT of Finnegan J. delivered the 18th day of August 2000.
THE PROCEEDINGS
	The Applicant was arrested on the 9th August, 2000 outside the Four Courts, Dublin pursuant to the powers conferred upon the Garda Siochana by the Immigration Act, 1999 Section 5(1) thereof upon the grounds that he is a person against whom a Deportation Order is in force and that he has failed to comply with the provisions thereof.  He is at present detained pursuant to the said Section at the Training Unit, Glengariff Parade, Dublin.  In these proceedings the Applicant seeks relief by way of judicial review the reliefs sought being those set out in the First Schedule hereto and the grounds relied upon being those set out in the Second Schedule hereto.  On 14th August, 2000 the Applicant sought leave to apply for judicial review ex-parte and I adjourned the application to Thursday 7th August, 2000 and directed that the application be made upon notice to the Respondents.

THE FACTS
	The Applicant is a Romanian National.  He gives his date of birth as 5th October, 1973 this being the date of birth given on a forged Italian identity card which was in his possession:  if this date is correct he is now just short of his 27th birthday.  He arrived in Ireland on the 25th August, 1997 and applied for asylum on that date.  His application was considered in accordance with the procedures for processing asylum applications known as the Hope Hanlan Procedures.  He was interviewed on the 2nd December, 1998.  His application was assessed on the 12th January, 1999.  By letter dated 25th May, 1999 the Applicant was informed that his application for asylum was refused.  On the 8th June, 1999 the Applicant appealed the decision to refuse his application and the appeal was heard on the 12th January, 2000.  Both the Applicant and his solicitor were informed of the date, time and place of the hearing and while the Applicant’s then solicitor attended without instructions from the Applicant the Applicant did not.  The Appeals Authority having considered the papers recommended that the appeal be dismissed.  On the basis of the recommendation from the Appeals Authority on the 10th February, 2000 a decision was made to uphold the decision to refuse the Applicant refugee status.  Notice of the making of the decision was sent to the Applicant by registered post on the 10th February, 2000.  This letter also informed the Applicant that the Minister for Justice, Equality and Law Reform proposed to make a Deportation Order in respect of him pursuant to the Immigration Act, 1999 Section 3 and notified him that, he was entitled to make representations to the Minister setting out any reasons as to why he should be allowed to remain in the State and requiring him to do so within 15 days of the sending of the letter.  A copy of this letter was sent to the Applicant’s solicitor.  The letters were not  returned as undelivered.  However the Applicant deposes that he did not receive the letter sent to him.  There must considerable doubt as to the correctness of this having regard to the Affidavits filed in this matter and sworn by Mary O’Sullivan on the 15th August, 2000, by Dan Ciulean sworn on the 12th August, 2000, by Detective Superintendent Michael Finn sworn on the 14th August, 2000, and the Affidavit of Gerry McConnell sworn on the 11th August, 2000.  However for the purposes of this application only I accept that the Applicant either did not receive the letter at all or alternatively did not receive it in sufficient time to enable him to make a submission within the 15 day time limit imposed by the letter.  The Minister for Justice, Equality and Law Reform duly received a recommendation from the Appeals Authority in relation to the Applicant which recommended deportation and on foot thereof the Minister made a deportation order in respect of the Applicant on the 12th April, 2000.  Arrangements for the deportation of the Applicant having been put in place by letter dated 28th April, 2000 the Applicant was notified of the making of the Deportation Order and he was requested to present himself to the member in charge at the Immigration Registration Office, Harcourt Square, Dublin 2 on Sunday May 7th at 2.30 p.m. to enable his deportation to take place.  This letter was sent by prepaid registered post to the Applicant at the address furnished by him.  The letter was not delivered and an advice from An Post that the letter be called for was not responded to and the letter was returned to the Department of Justice, Equality and Law Reform.  On the 1st August, 2000 the Applicant was arrested and his deportation put in train.  His arrest and detention was challenged by way of an application for an inquiry under Article 40.4 of the Constitution/habeas corpus and in circumstances which are not material to me he was returned to the State and detained.  His detention after his return was declared unlawful by order of Mr. Justice Quirke dated the 9th August, 2000.  The Applicant was released but was arrested outside the Four Courts on that day.  On the 10th August, 2000 a further application for an inquiry under Article 40.4 of the Constitution/habeas corpus was made to me and I directed that the Applicant be produced before the Court on the 11th August, 2000.  Upon that day the application was withdrawn but it was re-entered before me on the 14th August, 2000 on which day I refused the application.  On that day an application for leave to apply for judicial review and for relief under the Immigration Act, 1999 Section 5 (5) was made to me and I adjourned the same for hearing to the 17th August, 2000 the application to be on notice to the Respondents. This application is for the reliefs set out in the First Schedule hereto and upon the grounds set out in the Second Schedule hereto.

THE LAW RELEVANT TO THE RELIEF'S CLAIMED AND DECISION THEREON
	The principles of law governing the several reliefs sought are as follows:-
Relief 1.
	Directions that (apart from the prohibition certiorari and damages claims) these proceedings shall take the form of an inquiry under Article 40.4 of the Constitution and unless the Court is satisfied by the Respondents that the Applicant is being detained in accordance with law an Order for his immediate release.
	As recited above by Order dated 14th August, 2000 I refused the application for an inquiry pursuant to Article 40.4 of the Constitution.  In doing so I was mindful of the statement of Finlay CJ in Sheehan -v- Reilly [1992] 1 I.R. 81:-
	
	“(An application for an inquiry under Article 40.4) in its urgency and importance must necessarily transcend any procedural form of application for judicial review or otherwise.  Applications which clearly, in fact, raise an issue as to the legality of the detention of a person must be treated as an application under Article 40 no matter how they are described”.

	Having considered the return to my Order of the 10th August, 2000 I was satisfied that the arrest and detention of the Applicant was in accordance with law and in particular I was satisfied that there was in place a Deportation Order valid on its face and that no clear issue as to legality or constitutionality of the same arose and that having regard to the same and the provisions of the Immigration Act, 1999 the Garda Siochana had the power at law to arrest and detain the Applicant.  Having made my Order on the application for an inquiry under Article 40.4 I invited the Applicant should he wish to challenge the legality or constitutionality of the Deportation Order or the procedures to which the application for refugee status had been subjected  to do so by way of an application for leave to apply for judicial review and I received an undertaking that the Applicant would not be deported pending an application for leave to apply for judicial review and the Applicant accepted that invitation.  As I have already rejected the application for an inquiry I do not see that on the same facts a further application can be considered by me and accordingly I refuse this relief.

Relief 2.
	An Order prohibiting the Applicants deportation:-
(a)	to Romania, from where he claims to be a refugee.                                           On behalf of the Applicant it is argued that the Immigration Act, 1999 Section 5 (2) does not entitle the arresting authority to determine to what country a person should be deported.  This is true on a reading of the provision which merely empowers the authorities to place a person against whom the deportation order is in force upon a ship, a railway train, a road vehicle or aircraft about to leave the State.  In logic the destination of the ship, railway train, road vehicle or aircraft must be one which will receive the Applicant.  The Applicant is a Romanian National and it is not suggested that he will not be received there.  It has not been suggested that he would be received in any other jurisdiction and as he has no valid passport or similar papers it is unlikely that he would be so received.  No request has been made that his deportation should be directed towards any other State.  In these circumstances the argument is moot and in my discretion I accordingly refuse the relief.
(b)	On foot of the Deportation Order of 12th April, 2000 until the Applicant is set at liberty for a reasonable period so that he can make appropriate arrangements inter alia representations in writing to the Minister.                                             The scheme for granting or refusing refugee status and for deportation operated in the State makes adequate provision at each stage by way of notification to the Applicant for such status for him to arrange his affairs within the State and in the State in which he will be received prior to the execution of the deportation Order.  It is clear in this case that by reason of non receipt of the letter dated 28th April, 2000 the Applicant was denied the opportunity to do so.  The sole cause of that denial however was the Applicant’s failure to notify his change of address as he is required to do by virtue of the Aliens’ Act, 1935 and orders made thereunder.  Further I am satisfied from the Affidavits filed in the matter that the requirement to notify a change of address was brought to the Applicant’s attention.  Again the letter of the 28th April, 2000 limited a reasonable time within which he could make representations to the Minister and the inability to avail of the opportunity to do so was solely the fault of the Applicant in failing to notify his change of address.  Had the Applicant notified his change of address the receipt by him of the letters of the 10th February, 28th April, 2000 and 7th May, 2000 in the ordinary course of post would have afforded him adequate time to make appropriate arrangements.   The problem in this case is of the Applicant’s own making and is not a consequence of any unfairness in the scheme operated by the Respondents.  Accordingly I refuse leave on this ground.
(c)	Pending the determination of his damages claim against the State for inter alia false imprisonment and deliberate breach of his constitutional rights.                 I know of no authority and none has been cited to me for the proposition that a person not otherwise entitled to remain within the State may do so in order to prosecute a civil claim.  With great regularity civil claims are prosecuted in this State by persons resident abroad and no special circumstance has been cited to me to suggest that residence abroad would inhibit the prosecution of any legitimate claim which the Applicant might wish to bring.  Insofar as the deportation Order requires the Applicant having once left the State to remain thereafter out of the State it would if enforced in accordance with its terms prevent the Applicant entering into the State for the purposes of consultation with his legal advisors or for giving evidence.  However in the course of argument Counsel for the Respondents indicated that such leave would be forthcoming upon request.  A refusal to grant leave to enter the State for such purposes would prima facie be unlawful and unconstitutional and any such difficulty if encountered could be promptly dealt with on application to this Court.  I refuse leave on this ground also.
(d)	On foot of the Deportation Order of 12th April, 2000 in any event.                      The argument advanced on behalf of the Applicant is that the Deportation Order insofar as it requires of the Applicant that he leave the State having once been executed is now spent.  However the Deportation Order goes on to provide that thereafter the Applicant must remain out of the State.  The power of arrest, detention and removal conferred by the Immigration Act, 1999 Section 5 extends to a person who has failed to comply with any provision of a Deportation Order and it is therefore unnecessary to consider the argument that the same is in part spent.  Insofar as the requirement to remain out of the State is concerned the Applicant claims that he was brought into the State by the Respondents and that this circumstance creates an estoppel.  It is clear from the Affidavits filed in the matter that the Applicant was returned to the State on foot of a misapprehension as to the effect of an order made by Mr. Justice Herbert on the 1st August, 2000 the misapprehension being that the order required the body of the Applicant to be produced before the Court.  Estoppel is a rule of evidence.  There are many categories of estoppel - estoppel by deed, common law estoppel - (if a person does an act affecting someone else which he is entitled to do only if a certain state of things exists common law estoppel prevents that person from asserting as against the other that when he did it that state of things did not exist), estoppel by representation, estoppel by judgment.  While in argument the nature of the estoppel relied upon was not expounded it seems to me that the only category of estoppel relevant is common law estoppel. The state of things which the Respondents purported to rely upon was the misapprehension that the body of the Applicant was required to be produced before the Court pursuant to Mr. Justice Herbert’s order and if estoppel arises the effect is to prevent the Respondents denying that the order so required.  It does not prevent the Respondents relying upon the provision of the Deportation Order requiring the Applicant to remain out of the State following deportation.  The true effect of that provision in the Deportation Order is that should the Applicant return to the State following 
	Deportation and whether by compulsion or with permission and without the Deportation Order being revoked by the Minister he must again forthwith leave the State when the compulsion ceases or the permission expires.  In these circumstances the estoppel if established would not entitle the Applicant to remain in the State.  Accordingly I refuse leave on this ground also.
	
Relief 3.
	Insofar as it is deemed necessary an Order of Certiorari quashing the Deportation Order of 12th April, 2000.
	The grounds in relation to this relief are those set out in paragraph 14 of the Second Schedule hereto.  The Applicant did not receive the letter dated 28th April, 2000 but the sole reason for this was his failure to notify his change of address.  The Immigration Act, 1999 does not expressly require the Deportation Order to be served upon the person affected by it.  If it does so by implication then the sending of the same with the letter of 28th April, 2000 is sufficient; see my findings on relief 4 below.  While the Immigration Act, 1999 Section 3 (3) (ii) requires the Minister to notify a person in writing of his decision and the reasons for it and provides for representations to be made in response to notification of the Minister’s proposal to make a Deportation Order and that the same where necessary and possible should be accompanied by a copy of the notification in a language the person understands there is no corresponding statutory provision in relation to a Deportation Order.  The form of the Deportation Order in this case is that prescribed by the Immigration Act, 1999 (Deportation) Regulations, 1999 SI No. 319 of 1999 and that prescribed form does not provide for the inclusion of reasons.  The Act in Section 3 (3) (a) requires the Minister to state reasons in the notification of the proposal to make a Deportation Order and in these proceedings such notification is not challenged upon the basis that the reasons are not genuine.  Finally, Section 3 (3) of the 1999 Act does not relate to a Deportation Order but only to the notification of the  proposal to make such an Order.  Accordingly I refuse relief on this ground.

Relief 4.
	Insofar as Section 6 (b) of the Immigration Act, 1999 deems sending the registered letter dated 28th April, 2000 from the Repatriation Unit to an address where the Applicant had stayed to be sufficient notice for the purpose of Section 3 (3) of the said Act a declaration that the Subsection is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.

Relief 5.
	Insofar as Section 5 (1) (ii) of the Immigration Act, 1999 permits persons to be taken against their will to a point of departure from the State and to be forcibly sent out of the State without their being a procedure that would insure any legal challenge they wish to make against the deportation will be entertained by a Court, in particular an Article 40.4
application, or declaration that the sub section is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.

Relief 6.
	Insofar as Section 5 (5) of the Immigration Act, 1999 pre-empts the inherent jurisdiction to grant bail a declaration that (b) (iii) (sic) is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.
	I propose to deal with these three reliefs together.  Insofar as reliance is placed in the pleadings on the European Convention on Human Rights this was not pursued before me and the sole ground argued was that of constitutionality.  It was submitted by the Applicant that in order to challenge the constitutionality of an Act by way of judicial review leave is not required.  No authority is given for this proposition.  The Rules of the Superior Courts Order 84 Rule 20 (1) provides as follows:-
	
	“No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this Rule.”

	Clearly the constitutionality of an Act can be challenged in plenary proceedings without leave.  However Order 84 Rule 26 (5) provides as follows:-
	
	“Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in a civil action against any Respondent or Respondents begun by Plenary Summons by the Applicant at the time of making his application the Court may instead of refusing the application order the proceedings to continue as if they had begun by Plenary Summons.”

	This Rule however has reference to the hearing of “any motion or summons under Rule 22” that is the hearing stage and does not apply at application for leave.
	Insofar as the challenge to the Immigration Act, 1999 Section 6 (b) is concerned the legislative intention is clear from the Section.  The legislature prescribes two methods only in which notice may be given and the provision which is challenged is as follows:-
	“By sending it by post in a prepaid registered letter or by any other form of recorded delivery service prescribed by the Minister addressed to him or her at the address most recently furnished by him or her to the Minister or in a case in which an address for service has been furnished at that address.”
	
	The Interpretation Act, 1923 Section 7 does not apply in the circumstances of this case:  the Immigration Act, 1999 Section 6 contains a contrary intention within the meaning of that phrase in Section 7.
	S.I. No. 395 of 1946 Regulation 11 (1) (c)  requires an alien to notify his address and the requirement to do so was brought to the Applicant’s attention in the information leaflet furnished by the Department of Justice, Equality and Law Reform to him.  The clear intention of Section 6 of the 1999 Act is that it should not avail an Applicant for refugee status to conceal his address or change of address as in so doing he would be denied the opportunities afforded to him by the several provisions of the Immigration Act, 1999.  In short the word “sent” in Section 6 (b) means sent and not received.  A similarly worded provision in the United Kingdom Immigration Appeals (Notices) Regulations, 1972 Regulation 6 was considered by the Court of Appeal in R. -v- Secretary of State for the Home Department ex parte Yeboah (1987) 3 All ER 999 and it was there held that sent meant sent and not received and that the notice was effectively given when the notice was sent.  Section 6 (b) of the Immigration Act, 1999 must be accorded the like interpretation.
	The Applicant argues that if this is the true construction of Article 6 (b) then the provision is unconstitutional.  It is possible to envisage circumstances where through no fault of an Applicant for refugee status a notice properly addressed is not received by him and an argument that constitutional rights are thereby infringed might well merit the granting of leave to apply for judicial review.  But that is not the case here as the Applicant by his own conduct in failing to notify his change of address effectively prevented the operation of the Immigration Act, 1999 Section 3 (3) in his favour and in such circumstances it cannot be open to him to allege that the Respondents here infringed his constitutional rights.  Accordingly I refuse leave on this ground.
	As to the relief sought at 5, I find no substance in the same.  The Scheme of the Immigration Act, 1999 contains adequate safeguards in that opportunity is available to an Applicant for refugee status both upon receipt of a notification under the Immigration Act, 1999 Section 3 (3) (a) and Section 3 (3) (b) (ii) to challenge his deportation in the Court both at the time when he is notified that the Minister proposes to make a Deportation Order and in the event of representations being made upon notification by the Minister of his decision having considered those representations.  The fact that the opportunity was not available to the Applicant in this case was due solely to his own default in notifying his change of address.  In any event in  the circumstances of the arrest which I have to consider the opportunity was indeed afforded to the Applicant to consult with his legal advisors and they were enabled as a result to bring both the application for an inquiry under the Constitution Article 40.4/habeas corpus and these proceedings by way of Judicial Review.  In these circumstances sufficient interest has not been shown by the Applicant: G -v- DPP (1994) 1 I.R. 374.  Where a person is arrested pursuant to the Immigration Act, 1999 Section 5  (1) it seems to me that he should have access to legal advice and while the Act does not specifically provide for this it is not thereby rendered unconstitutional as the presumption is that the Act will be applied in a constitutional manner and that such access will be allowed.  The right to such access was affirmed in The People (DPP) -v- Doyle (1977) IR 336  and The People (DDP) -v- Healy (1990) 2 IR 73.
	In relation to the Immigration Act, 1999 Section 5 (5) the Applicant argues that the effect of the Immigration Act, 1999 Section 5 (6) (b) (iii) may be to prevent a person ever obtaining bail when they are challenging the lawfulness of their detention.  I accept that the Court has an inherent jurisdiction to grant bail but that discretion is in no way circumscribed by Section 5 (5) of the Act.  Section 5 (6) of the Act prescribes a maximum period of detention of eight weeks but excludes from the calculation of that period inter alia the period between the institution of proceedings challenging the validity of a Deportation Order and the final determination of those proceedings or an appeal therein.  Section 5 (6)  can only have application where the Court in exercise of its discretion refuses bail and does not in any way circumscribe the Court’s power to grant bail.  The relief sought under this heading is accordingly refused.

Relief 7.          Bail
	In view of my findings above and in anticipation that the Deportation Order will be given effect to without delay I refuse the application for bail.  In so doing I take into account the following circumstances-
      (i)	the Deportation Order will be given effect to without delay.
     (ii)	I find that the Applicant if given bail is unlikely to submit to the execution of the Deportation Order.  I make this finding upon the basis that the Applicant changed his address without notifying the same.  At the time of changing his address he ceased collecting unemployment benefit and I infer from this that he was anxious that the authorities should not contact him or apprehend him while he was collecting the benefit.  He failed to attend before the Appeals Authority and I infer from this again that he was anxious that the authorities should be unable to contact him.  Upon the occasion of his first arrest he was carrying forged documents identifying him as an Italian National and initially gave an incorrect name to the arresting Garda.
	In the event that there should be a delay in effecting deportation pursuant to the Deportation Order this would represent a change in circumstances which would justify a fresh application to the Court for bail and likewise if my decision in this matter should be appealed.

Relief 8.          Damages.
	The Applicant’s claim for damages is related to his detention on his return to the State on foot of the Order of Mr. Justice Herbert as misapprehended and which detention has been declared unlawful by Order of Mr. Justice Quirke made on the 9th August, 2000 which Order was not however available before me.  On an application for judicial review the Court may award damages to the Applicant but as I have refused leave there is no application for judicial review and accordingly the Rules of the Superior Courts Order 84 Rule 24 does not apply.  The proper course for the Applicant is to institute proceedings by way of Plenary Summons claiming damages for false imprisonment.  The discretion conferred upon the Court by Order 84 Rule 26 likewise does not apply as the same only arises on the hearing of a motion or summons under Rule 22 and not on an application for leave.
	Accordingly, I refuse the Applicant leave to apply for judicial review for each of the reliefs which he seeks in his statement required to ground application for judicial review.  In refusing leave I am very mindful of the low threshold required of an applicant for leave: G -v- DPP (1994) 1 IR 374.  Having considered the many affidavits filed on this application and on the application for an inquiry under the Constitution Article 40.4 and on the applications to Mr. Justice Herbert and Mr. Justice Quirke and having given full consideration to Mr. Forde’s learned and comprehensive arguments I have not been satisfied that the requisite low threshold of showing an arguable/prima facie case has been crossed.

FIRST SCHEDULE
RELIEFS CLAIMED
1.	Directions that (apart from the prohibition, certiorari and damages claims) these proceedings shall take the form of an enquiry under Article 40.4 of the Constitution and, unless the Court is satisfied by the Respondents that the Applicant is being detained in accordance with law, an Order for his immediate release.
2.	An Order prohibiting the Applicant’s deportation -
(a)	To Romania, from where he claims to be a refugee;
(b)	On foot of the Deportation Order of 12th April, 2000 until the Applicant is set at liberty for a reasonable period so that he can make appropriate arrangements, inter alia, representations in writing to the Minister;
(c)	Pending the determination of his damages claim against the State for inter alia false imprisonment and deliberate breach of his constitutional rights;
(d)	On foot of the Deportation Order of the 12th April, 2000 in any event.
3.	Insofar as it is deemed necessary, an Order of Certiorari quashing the Deportation Order of 12th April, 2000.
4.	Insofar as Section 6 (b) of the Immigration Act, 1999, deems sending the registered letter dated 28th April, 2000 from the Repatriation Unit to an address where the Applicant had stayed to be sufficient notice for the purpose of Section 3 (3) of the said Act, a declaration that the sub-section is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.
5.	Insofar as Section 5 (1) (ii) of the Immigration Act, 1999, permits persons to be taken against their will to a point of departure from the State and to be forcibly sent out of the State, without there being a procedure that would ensure any legal challenge they wish to make against their deportation will be entertained by a Court, in particular an Article 40.4 application, a declaration that the sub-section is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.
6.	Insofar as Section 5 (5) of the Immigration Act, 1999, pre-empts the inherent jurisdiction to grant bail, a declaration that (b) (iii) (sic) is repugnant to the Constitution, contravenes the European Convention on Human Rights and is void.
7.	Bail.
8.	Damages.
9.	Directions that the Affidavits filed in the Article 40.4 enquiry determined by the Honourable Mr. Justice Quirke and those filed in the similar enquiry which was withdrawn last Friday be deemed filed in this application.
10.	Further and other relief.
11.	Costs.
	
SECOND SCHEDULE
GROUNDS.
1.	Although the State are on notice of this application and have been given copies of the papers being relied on the normal criteria in ex-parte applications apply, inter alia, all that Applicant need show is an arguable/prima facie case  G -v- DPP (1994) 1 I.R. 374, described by Kelly J as “low threshold” : Riordan -v- An Taoiseach (2000).
HABEAS CORPUS/ARTICLE 40.4
2.	Applicant seeks inter alia an enquiry into the lawfulness of his detention under Article 40.4 of the Constitution.  Such an application was withdrawn by him on 11th August in unusual circumstances but he is not thereby precluded from making a fresh application or indeed from seeking to revive last week’s application: Application of Woods (1970) I.R. 154 at p.162.
3.	The proposition that tendering of prima facie valid Deportation Order, in response to a direction under Article 40.4.2 concluded the enquiry and that all remaining issues between the parties must be determined by way of judicial review, is manifestly untenable.  If the proposition were correct, it would not have been necessary to pass Section 5 (1)  (c) of the Illegal Immigrants (Trafficking) Bill, 1999, which is being considered by the Supreme Court in a reference under Article 26 of the Constitution.  Nor in the U.S.A. would it have been necessary to enact a comparable provision in the Illegal Immigration Reform and Immigrant Responsibility Act, 1996: see Neuman,  “Jurisdiction and the Rule of Law After the 1996 Immigration Act”, 113 Harv. L. Rev. 1963 (2000).
4.	Decisions to deport have always been reviewable by way of habeas corpus, e.g., Eshugbayi Elko -v- Officer Administering Nigeria (1931) A.C. 662, R -v- Brixton Governor ex. p. Ashan (1969) 2 Q.B. 222 and Zamir -v- Secretary of State (1980) A.C. 930.  Where it is deemed necessary to have an Order or Warrant detaining the Applicant quashed, the practice has always been to make an Order of Certiorari in aid of habeas corpus, e.g. State (Goertz) -v- Minister for Justice (1948) I.R. 45 and (an extradition case) R. -v- Bow Street Magistrates ex p. Pinochet Ugarte 1998 3. W.L.R. 1457 at 1461 which was commenced on 23 October by way of an application for habeas corpus; there were also parallel judicial review proceedings but it was never suggested that the latter should displace the habeas corpus because the Bow Street Magistrates’ two warrants were prima facie valid on their faces: e.g. R. Sharpe The Law of habeas Corpus  (2ed.19..) At p.51 “certiorari in aid of habeas corpus”.
5.	It has been held by the Supreme Court that, where persons are being detained other then under a prima facie valid order of Court, High Court Judges should not seek to convert Article 40.4 applications into judicial reviews:  Sheehan -v- Reilly (1992) 1. I.R.81  even challenges to detention following a conviction may be made by way of habeas corpus, e.g. O’C -v- Governor of Curragh Prison (2000) I.L.R.M. 76. Where it was never suggested that once the conviction was exhibited in the return the case had to proceed by way of judicial review.  There the whole question of whether an Article 40.4 / habeas corpus and/or judicial review was canvassed extensively at the leave stage before O’Caoimh J.  G. Sharpe habeas corpus at pp. 23-24 on ‘going behind’ the formal return and at pp 59 at seq. stating that “the existence of an alternative remedy does not afford grounds for refusing relief of habeas corpus”.
6.	Whether there is any need to quash by way of certiorari a Deportation Order is questionable as, unlike a judicial warrant or a conviction, the Order can be cancelled or withdrawn or revoked by the Minister.  Sharpe’s discussion of certiorari in aid of habeas corpus is in his chapter dealing with challenges to judicial decisions and not in chapter 4 dealing with habeas corpus and the executive.  As Sharpe remarks at P. 117  “(t) here are few situations in peace time where the executive is given discretionary power to order detention” the principal one being deportation cases”.  Another example is the extradition system that obtained in the era of State (Quinn) -v- Ryan (1965) I.R. 70.
1	Although in England recently, the Court of Appeal has ruled that ordinarily challenges to deportations should be by way of judicial review (R -v- Secretary of State ex. P. Muboyai (1992) Q.B. 244), that approach is not open here in view of Article 40.4 being fundamental law, Article 40.1 that prohibits unfair discrimination against inter alia aliens and the Sheehan case  (1993) 2 I.R. 81.

Merits
1	Habeas corpus/Article 40.4 is not a discretionary remedy and must be given once a prima facie case of unlawful detention in made out: Article 5 (4) of the European Convention on Human Rights and Sharpe at pp. 58 -59.
2	Section 5 (2) of the Immigration Act, 1999, does not entitle the arresting authority to determine to what country a person should be deported and, in particular, does not entitle that authority to insist that the person be deported to the State where he claims he will be prosecuted on political etc., grounds, when there are other States to which that person is free to go should he so choose; this restriction on the deportation discretion arises under inter alia, the Constitutional guarantee of freedom to travel.  Accordingly, the Applicant is entitled to elect his destination and no such election has been offered to him; such arrangements as were made and are in existence are all for sending him to Romania.
3	Having been brought into the State by servants or agents of the Respondents, following an aborted deportation and thereupon detained unlawfully for over a week, there is an estoppel and the Applicant cannot be deemed to be in breach of the “remain thereafter out of the State” requirements of the Deportation Order until he has been afforded at least one hour of liberty so that he can make arrangements to leave the State, should he choose to do so.
4	Estoppel/legitimate expectation - it having been orally represented to the Applicant’s solicitor about 5.30 p.m., on 9 August, 2000 by a senior Garda immigration official that the Applicant would not be deported until he had reasonable opportunity to challenge his proposed detention in the courts; that opportunity was unilaterally withdrawn by the Respondents’ solicitor’s fax of around 6.00 p.m. on that day stipulating a 24 hour deadline.
5	Right of access to the court - Applicant had informed Respondents’ servants or agents that he would be bringing proceedings to challenge his proposed deportation; to deport him prior to hearing those proceedings would unconstitutionally infringe his right of access to the courts; similarly with the claim he is bringing seeking damages for false imprisonment, trespass to goods and deliberate violation of his constitutional rights (see points of claim).
6	Having been deported on foot of the 12 April, 2000 Deportation Order, the requirement therein that the Applicant “leave the State” was satisfied and that Order is spent in that respect; in order to be re-deported and re-arrested under Section 5 (1) of the 1999 Act for that purpose, a fresh Deportation Order is required.
7	The Applicant was not given proper notice of the making of the Deportation Order of 12 April, 2000 as required by Section 3 (3) of the 1999 Act, because inter alia,
(i)	He never received the registered letter dated 28 April, 2000 addressed to him at 35 Fitzgibbon Street,
(ii)	It was in English, a language he does not understand (he is Romanian);
(iii)	Such purported reasons as it contains are not reasons in any genuine sense but an assertion of impermissibly sweeping generality;
(iv)	Showing the Applicant the Deportation Order on 1st August when he was being brought by the Gardai to Dublin Airport and/or giving a solicitor a copy thereof on 9th August when the Applicant was being re-arrested is not adequate notice under Section 3 (3).

CONSTITUTIONALITY
1	The Applicant does not require leave to seek declarations that the provisions of the Immigration Act, 1999 are unconstitutional.  He is entitled as of right to bring such proceedings, subject of course to the Respondents’ right in an appropriate case to apply for a strike-out on the grounds that the claim being made is manifestly unattainable and therefore frivolous and vexatious.
2	In cases with an inter-state element, e.g., deportation, the guarantees in the European Convention on Human Rights must be taken into account when determining the constitutionality of an Act of the Oireachtas.  This is because -
(i)	Re O’Laighleis  (1950) I.R. 93 had no inter-state element and preceded accession to the E.E.C., and later the E.U.; it and cases following it are distinguishable.
(ii)	Within Western Europe the Convention is now part of the “generally recognised principles of international law”, which the State accepts in Article 29.3 of the Constitution.
(iii)	The Convention had been incorporated into E.U. Law and, through Article 29.4, 3-5, is more than a mere inter-state agreement.
(iv)	In the “Good Friday Agreement” the parties agreed to make the Convention law in both parts of the island of Ireland and the U.K. already has fulfilled its part of the obligation.
	Accordingly, there is a legitimate expectation that the State, including the Oireachtas, will respect the Convention’s guarantees: Fakih -v- Minister for Justice (1993) 2 I.R. 406, Minister for State -v- Teoh, 183 C.L.R. 273 (1995) and U.K. cases.  For the above reasons the Convention is in a similar position to E.C. Directives that have not been implemented being binding on the State and its insturmentalities notwithstanding failure to fully implement.
1	Section 6 (b):  If the registered letter of 28 April, 2000 that the Applicant never got is deemed by Section 6 (b) of the 1999 Act to be sufficient notice, then that sub-section is invalid because, in such a potentially drastic step as deportation, especially to a State from which the non-national claims to be a political refugee, personal service is essential or else actual proof that the individual did receive notification in some other manner: De Geoufffre -v- France, A 253 (1992).  Potential administrative drawbacks from this more rigorous requirement can be rectified by Section 10 (a) and (ii) of the Illegal Immigrants (Trafficking) Bill, 1999, when it comes into force.
2	Section 5 (1), (2);  As the circumstances of this case demonstrate, persons can very easily be arrested and deported and, in the process, denied of their State (Quinn) -v- Ryan (1965) I..R. 70 right and European Convention right of access to the Court in order to challenge what is being done to them.  Because Section 5 of the 1999 Act contains no safeguard against such unlawful conduct, it (like the 1885 Act in the Quinn case) it is unconstitutional:  Immigration Law Decision, Conseil Constitutional (France) 9 - 109 D.C. Of  0 January, 1980 and Chalal -v- United Kingdom, 23 E.H.R.R. 413 (1996).  To save Section 5 (1) from invalidity, it must be construed as requiring the non-national to be detained in a prescribed place for sufficient time and with adequate opportunity to obtain legal advise (that was not done in the present case).  However, such construction would not seem open on the language.
	
	Section 5 (5) (b) (111) (sic) :  In order to prevent persons ever obtaining bail when they are challenging the lawfulness of their detention, particularly executive detention without any court order, a constitutional amendment is required: People -v- O’Callaghan (1966) I.R. 501 and People -v- Gilliland (1985) I.R. 643.  To save Section 5 (5) (b) (iii) (sic), all of (5) must be construed as not displacing the inherent jurisdiction of the High Court to grant bail in habeas corpus an comparable proceedings.  However, such construction would not seem open as it would render (5) otiose.
	
	DAMAGES
1	Especially since it has already been decided that the Applicant was in unlawful detention for a week, he does not require leave to claim damages from the State.  He is entitled as a right to bring such proceedings and the Order of Quirke J. of 9 August, 2000 is more than adequate answer to any suggestion of bringing frivolous and vexatious claims.
2	Applicant is entitled to damages because inter alia - 
(i)	Gardai seized and detained his mobile phone without lawful authority to do so: trespass to goods.  There is no such authority in Section 5 or elsewhere in the 1999, Act - compare Section 7 of the Illegal Immigrants (Trafficking) Bill, 1999.
 (ii)	Gardai prevented for 3½ hours telephone communications between the Applicant and his brother and any others he may have desired to communicate with - constitutional guarantee of freedom of expression and communication, comparable to right of privacy in Kennedy -v- Ireland (1987) I.R. 587.
 (iii)	Applicant was kept at the Training Unit for a week when original arrest had expired about 4.15 p.m. on 1st August when Aer Lingus plane left the State: false imprisonment and R -v- Governor of Brockill Prison ex. P. Evans (No. 2) Times L.R. 2 August 2000.
 (iv)	Gardai almost succeeded in deporting the Applicant in circumstances where they deliberately prevented him from endeavouring to access the High Court to apply for habeas corpus or otherwise, until they believed it was too late for him to do so: Osman -v- United Kingdom 29 E.H.R.R. 245 (1998), Bennett -v- Commissioner of Police (1995) 1 W.L.R. 488.
                     BAIL
1	Bail can be sought and given in habeas corpus proceedings; Sharpe pp. 134 - 135.  Indeed, persons who are on bail are, for the purposes of making a habeas corpus application, deemed to be in custody: R -v- Secretary of State ex. P. Launder (No. 2) (1998) Q.B. 914.
2	Applicant ought to get bail here because inter alia -
 	(i)      He has not been charged, let alone convicted, of any criminal offence;
 	(ii)     He came into the State with the knowledge and consent of the
 	          Respondents, albeit in response to a court order;
 	(iii)    He already has been held to have been unlawfully detained a whole week
 	(iv)     he has no real incentive to flee and every intention to remain in the State,
 	           e.g. prosecute his damages claim, Article 40.4 application.
cfpopa(jf)