Judgment Title: Darchiashvili -v- Governor of Mountjoy Womens Prison
Composition of Court:
Judgment by: Edwards J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 264
THE HIGH COURT
2011 1189 SS
IN THE MATTER OF AN APPLICATION PURSUANT TO
ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND
THE GOVERNOR OF MOUNTJOY WOMEN’S PRISON
JUDGMENT of Mr. Justice Edwards delivered on the 23rd day of June, 2011
The applicant was born in Georgia on 15th November, 1955. She came to Ireland in March, 2005 and has lived in Ireland since that time. She unsuccessfully sought asylum on the basis that she was a refugee. On 24th June, 2005, the applicant was notified that she was being refused refugee status and she pursued an appeal from this decision. This appeal was unsuccessful. On 29th December, 2005, the applicant was notified that the Minister for Justice, Equality and Law Reform (as the relevant Minister was then entitled) had decided to refuse to give her status as a refugee and was considering her deportation.
Subsequently, she sought leave to remain in the State under s.3 of the Immigration Act 1999, as amended (hereinafter “the Act of 1999”) and to that end representations were made on her behalf by the Refugee Legal Service. However, these representations were unsuccessful and a deportation order was made in respect of the applicant on 2nd May, 2006. The applicant was then required to present herself at the offices of the Garda National Immigration Bureau, Burgh Quay, Dublin 2 on 6th July, 2006, to facilitate the making of arrangements for her removal from the state. The applicant did not present herself as required and was deemed to be an ‘evader’.
The applicant then left Dublin and went to live in Cashel for some time but later returned to Dublin and took up residence at 95 Meath Street, Dublin 8. The applicant did not notify the authorities of her changes of address pursuant to her obligations.
On the 13th June, 2011, the applicant was arrested and detained and taken to ‘The Dóchas Centre’ (Mountjoy Women’s Prison) where she continues to be detained pending the making of arrangements for her removal from the State. The Court has been given to understand by counsel for the respondent that her arrest and detention was effected by a member of An Garda Siochána attached to the Garda National Immigration Bureau. On Thursday the 23rd June, 2011, the applicant made a complaint that she was being unlawfully detained and sought an inquiry pursuant to Article 40.4.2 of the Constitution (Bunreacht na hÉireann). The Court opened an inquiry pursuant to Article 40.4.2 aforesaid and required the respondent to certify in writing the grounds of the applicant’s detention and further required the respondent to produce the body of the respondent before the Court, both of which requirements were complied with.
On Friday the 24th June, 2011, this Court, following due inquiry in the course of which the respondent was given an opportunity of justifying the detention, concluded that the applicant was in unlawful detention and directed her release. The Court stated that it would give its reasons in a reserved judgment to be delivered in due course. I now give those reasons.
Certification of grounds of detention
The second part of the document records: -
The second part of the document is also signed with the same unintelligible signature, again above the words “authorised person”, and again is date stamped 13 June, 2011, using the stamp of the “Garda National Immigration Bureau – Detective Sergeant’s Office”.
The relevant legislation
Section 3(1A) of the Immigration Act 1999 (as inserted by s. 10(a) of the Illegal Immigrants (Trafficking) Act 2000) provides:-
(a) has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii),
(b) intends to leave the State and enter another state without lawful authority,
(c) has destroyed his or her identity documents or is in possession of forged identity documents, or
(d) intends to avoid removal from the State,
(2) A person arrested and detained under subsection (1) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State.
(a) that the person reside or remain in a particular district or place in the State,
(b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals,
(c) that he or she surrender any passport or travel document in his or her possession.
(b) The following periods shall be excluded in reckoning a period for the purpose of paragraph (a):
(ii) any period spent by the person on board a ship, railway train, road vehicle or aircraft pursuant to this section, and
(iii) if the person has instituted court proceedings challenging the validity of the deportation order concerned, any period spent by the person in a place of detention between the date of the institution of the proceedings and the date of their final determination including, where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal or, as appropriate, the expiry of the ordinary time for instituting any such appeal.”
Section 7 of the Immigration Act 1999 (as amended) provides:-
(a) by regulations provide, subject to the provisions of this Act, for any matter referred to in this Act as prescribed or to be prescribed, and
(b) in addition to any other power conferred on him or her to make regulations, make regulations generally for the purposes of, and for the purpose of giving full effect to, this Act including regulations requiring a non-national against whom a deportation order has been made to repay any expenditure incurred by the Minister in relation to his or her deportation having regard to the financial circumstances of the person and providing for the procedure for such repayment.
(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.”
Regulations 5 to 7 of the Immigration Act 1999 (Deportation) Regulations 2005 (S.I. No. 55 of 2005) (hereafter “Regulations of 2005”) provide as follows:-
6.—Immigration officers and members of the Garda Síochána are hereby authorised to deport a person from the State under the Act.
7.—Where an immigration officer or member of the Garda Síochána arrests a person pursuant to section 5(1) of the Act and where he or she proposes to detain the person in a prescribed place, he or she shall, in writing, inform the Member in Charge, in the case of a Garda Síochána station, or the Governor, in any other case, of the arrest and direct that the person be detained until further notice.”
Mountjoy Prison (inter alia) is specified within the Second Schedule of the Regulations of 2005, as being a place prescribed for the purposes of s. 5(1) of the Act of 1999. In the course of this inquiry the Court heard oral evidence that Mountjoy Women’s Prison (known informally as ‘The Dóchas Centre’) is not merely co-located on the same campus as Mountjoy Prison but is in fact a part of Mountjoy Prison.
The applicant’s complaints
The precondition referred to is the requirement in regulation 7 aforesaid that “[w]here an immigration officer or member of the Garda Síochána arrests a person pursuant to section 5(1) of the Act and where he or she proposes to detain the person in a prescribed place, he or she shall, in writing, inform the …. Governor …. of the arrest and direct that the person be detained until further notice” [the Court’s emphasis]. The applicant complains, and counsel for the respondent accepts, that the Governor was not notified in writing of the applicant’s arrest. The document entitled “An Garda Siochána, Immigration Act, 1999 (No. 22 of 1999) Notification of Detention” is silent as to the fact of the applicant having been arrested pursuant to section 5(1) of the Act and merely asserts that “[i]n exercise of the powers conferred on me by Section 5 of the Immigration Act, 1999, as amended, and by the Immigration Act, 1999 (Deportation) Regulations, 2005 (S.I. No 55 of 2005) made in exercise of the powers conferred by Section 7 of the Immigration Act, 1999 (No 22 of 1999), I direct that pending the making of arrangements for his/her removal from the State, that Leila Darchiashvili, DOB 15/11/1955 be detained… etc.”
As the Court has, for the reasons to be stated below, upheld this ground of complaint and was disposed on account thereof to order the release of the applicant from unlawful detention, it has not been necessary for the Court to consider in detail, or to rule upon, any of the other grounds advanced by the applicant for contending that her detention was unlawful. The applicant was entitled to be released if, as was the case, the Court was satisfied on any one ground that her detention was unlawful.
Submissions on behalf of the respondent.
This section of the Bill takes the form of amendments to ss. 3, 5 and 6 respectively of the Immigration Act, 1999.
The general power of detention in relation to deportation orders
Section 3 of the Act of 1999 provided for the making of deportation orders in respect of different categories of non-nationals specified in subs. (2) of the section. The first amendment proposed to be effected to s. 3 is the insertion of a new subsection (1A) which would read as follows:-
"A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State."
Counsel for the Attorney General, in their written submissions in reply to the submissions by counsel assigned by the court, say:-
"The suggestion that the new s. 3(1A) of the Immigration Act, 1999, would have the effect of widening the power to detain - a suggestion which appears at p. 1 of the submission in opposition to the Bill - is misconceived. Section 3(1A) confers no new power of detention. On the contrary, it effectively limits the power of detention conferred by s. 5 of that Act by providing clearly that that power may only be exercised in respect of any person 'for the purpose of ensuring his or her deportation from the State'."
In their earlier written submissions, counsel for the Attorney General elaborate on this argument more fully, citing the passage already referred to in this judgment from the judgment of Keane J. in Laurentiu v. Minister for Justice  4 IR 26.
As counsel for the Attorney General point out, the inherent power to deport is now regulated by s. 3 of the Act of 1999 and the power to detain under s. 5 is consequential upon and ancillary to the power to deport. The amendment proposed to be effected to s. 3 of the Act of 1999 by the insertion of the new subs. (1A) is simply for the purpose of making express, what would at any rate have been quite clearly implied, namely that the powers of detention are for the purpose of ensuring deportation.
The court agrees with the submissions of counsel for the Attorney General in this regard. There is no question of any new or draconian power of detention being introduced by the Bill. The detention, if it is to remain lawful, must be confined to the statutory purposes in accordance with the principles enunciated by Flood J. in Gutrani v. Governor of Wheatfield Prison (Unreported, High Court, Flood J., 19th February, 1993).”
The document entitled “An Garda Siochána, Immigration Act, 1999 – Notification of Detention” merely records that the signatory, who is said to be an “authorised person” directs, purportedly in exercise of certain powers which are unspecified but which are said to be contained in specified legislative provisions, that pending the making of arrangements for the applicant’s removal from the State the applicant be detained in “Mountjoy Women’s Prison a prescribed place”, and that the basis of such detention is that the applicant “intends to avoid removal from the State”.
It is interesting to note that while s.5(1) of the Act of 1999, empowers an immigration officer or a member of the Garda Síochána, to arrest a person against whom a deportation order is in force, where the arresting officer with reasonable cause suspects that that person intends to avoid removal from the State, and detain him or her in a prescribed place, it does not expressly authorise the delegation of, or transfer of, the power of detention to another, e.g. the Governor of the prescribed place (in this instance the respondent, who is the Governor of Mountjoy Women’s Prison). Further, though this might have been done, it does not employ the same device as is used in s. 5(4) of the Act of 1999 (to declare that detained person, the custody of whom has been delegated or transferred to a person in charge of a prescribed place, to “be deemed to be in lawful custody whilst so [further] detained.)”
However, the Court regards the entitlement of an authorised person to transfer the physical custody of a detained person, and/or to delegate the further detention of the detained person, to the person in charge of a prescribed place to be implicit. Section 5 of the Act of 1999 relates to arrest and detention in the civil context. It is not a provision that relates to the imposition of a penal or other sanction and therefore is amenable to a purposive interpretation in accordance with s. 5 of the Interpretation Act 2005. It would be absurd, having regard to the scheme of the Immigration Act 1999 as a whole, if an authorised person having initially arrested and briefly detained an intended deportee under s. 5 of the Act of 1999, and who was desirous that that person should be further detained in a prescribed place, but not being himself or herself in charge of the prescribed place, could not hand over the detained person to the person who is in fact in charge of the prescribed place.
However, the implication of an entitlement on the part of an authorised person to hand over an intended deportee in custody to the person in charge of a prescribed place raises other issues. An authorised person, and it follows his or her proposed delegate, or transferee, as the case may be, can only detain the intended deportee for the purpose of ensuring his or her deportation from the State, and can only do so for the period allowed by law. The total period of detention allowed by law is limited by s.5(6) of the Act of 1999 to a period or periods not exceeding eight weeks in aggregate.
It is clear from Attorney General v Cox (Unreported, Court of Criminal Appeal, 9th April, 1929); Dunne v Clinton  I.R. 366 and other cases, that there is no meaningful distinction to be drawn between “arrest” and “detention” in terms of the effect upon a person’s right to liberty. Detention embraces arrest. In semantic terms the word arrest describes the point in time at which restraint of the detainee’s liberty commences.
In Attorney General v Cox (Unreported, Court of Criminal Appeal, 9th April, 1929) the Court of Criminal Appeal rejected the suggestion that the law might recognise some form of restraint not amounting to arrest and made it clear that a detention embraces an arrest. Kennedy C.J. said:-
Because there is no meaningful distinction to be drawn between “arrest” and “detention” in terms of the effect upon a person’s right to liberty, and because the total period or periods during which a person may be detained under s. 5 of the Act of 1999 is subject to a specific limit i.e., it is limited to a period or periods not exceeding eight weeks in aggregate, the person in charge of a prescribed place, and to whom custody of the intended deportee is to be delegated or transferred, needs to know (a) if the person that he or she is being asked to take custody of has already spent some time in detention and (b) if so, how long that person has spent in custody up to that point. For practical purposes, that means that the person in charge of a prescribed place needs to be told, or be able to ascertain, whether the intended deportee was arrested before being presented to him or her for detention. If the person in charge of a prescribed place is duly informed of the fact of an earlier arrest he or she will, by virtue of being so informed, be prompted to ascertain from the arresting officer both the time of arrest (or arrests as the case may be), and the duration of the previous detention or detentions, and can thereby satisfy himself or herself as what portion, if any, of the theoretical maximum of eight weeks deprivation of liberty in aggregate remains during which the intended deportee might be lawfully detained. (It is important to state here that it was acknowledged in the judgment In re Article 26 of the Constitution and in the matter of ss. 5 & 10 of the Illegal Immigrants (Trafficking) Bill 1999  2. I.R. 360, at p. 411, that “[e]ven though the Irish legislation contains an express time limit of eight weeks in the aggregate subject to certain extensions where proceedings are brought etc., it would still be the case that it would be an abuse of the power to detain if it was quite clear that deportation could not be carried out within the eight weeks.”)
The need for a person in charge of a prescribed place to know about an earlier arrest or arrests is afforded express recognition in regulation 7 of the Regulations of 2005 which requires that “[w]here an immigration officer or member of the Garda Síochána arrests a person pursuant to section 5(1) of the Act and where he or she proposes to detain the person in a prescribed place, he or she shall, in writing, inform the …. Governor …. of the arrest and direct that the person be detained until further notice.” The Court is satisfied that this is not merely a procedural requirement. Rather it is properly to be characterised, in this Court’s view, as a provision necessary for the purpose of giving full effect to the power of arrest and detention contained in s. 5 of the Act of 1999. It is not merely an incidental, supplementary and consequential provision, rather the regulation creates a necessary precondition to the lawful delegation of the power of detention, and/or the transfer of custody, of an intended deportee who has been arrested and initially detained by an authorised person in reliance on s. 5 of the Act of 1999, to the person in charge of the prescribed place at which it is proposed to further detain, or more correctly, continue the detention of the detained person.