Judgment Title: Li -v- Governor of Cloverhill Prison
Neutral Citation: 2012 IEHC 493
High Court Record Number: 2012 2227 SS
Date of Delivery: 11/28/2012
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 493
THE HIGH COURT
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2
OF THE CONSTITUTION OF IRELAND
[2012 No. 2227 SS]
JIN LIANG LI
GOVERNOR OF CLOVER HILL PRISON
JUDGMENT of Mr. Justice Hogan delivered the 28th day of November, 2012
1. Where an illegal immigrant persistently flouts the immigration rules and fails to co-operate with the authorities, does that person pose a threat to "public order" in the sense in which that term is used by s. 9(8) of the Refugee Act 1996 ("the 1996 Act") so as to enable his arrest on this ground and so as to justify his subsequent detention on this basis by order of the District Court? That, in essence, is the question which arises in this application pursuant to Article 40.4.2 of the Constitution. For the reasons I shall shortly set out, I am satisfied that such a person does not come within the scope of s. 9(8) of the 1996 Act merely because of non-compliance with immigration law. Since this, however, was essentially the basis on which the applicant was first arrested and thereafter detained, I shall therefore order the release of the applicant as soon as this Court presently adjourns.
3. The applicant was accordingly arrested on 20th November, 2012, pursuant to s. 5(1) of the Immigration Act 1999. The validity of this initial arrest would not appear to be in dispute. As, however, arrangements were being made for him to be taken by airplane from Dublin to Amsterdam and onwards to Beijing, the applicant applied for asylum. Detective Garda O Sommacháin then released the applicant from his detention under s. 5(1) of the 1999 Act and arrested him pursuant to s. 9(8)(a) of the 1996 Act.
4. The applicant was then brought before the District Court and that Court made an order pursuant to s. 9(10)(a) of the 1996 Act detaining him until today, 28th November, 2012, on the ground he posed a threat to public order in the State. It is accepted that the validity of the applicant's present detention rests on this order.
5. Before considering the relevant statutory provisions in more detail, it is worth observing that the applicant is currently neither charged with- still less convicted of any offence. His current detention is a form of civil detention in aid of the asylum process and, but for the fact that he is applying for asylum, there would be no basis at all for detaining him in custody. Unless the constitutional protection of the right to personal liberty in Article 40.4.1 is to be reduced to a mere platitude, then it is obvious that any orders of this kind call for a high degree of judicial supervision. This is especially so given that the applicant can now be detained on this basis by the District Court for a maximum of21 days: sees. 9(10)(b)(i) of the 1996 Act (as amended by s. 7(c) of the Immigration Act 2003).
6. While it is true that as Dunne J. observed in Adejegba v. Deery, High Court, 6th April, 2006, the District Judge must exercise his or her functions "judicially and carefully having regard to the serious consequences involved in an order made under this section", the fact remains that it appears that asylum seekers can be potentially subjected to a series of such detention orders made by the District Court. This is contrast with the eight week maximum detention period prescribed in the case of administrative arrest pending deportation sanctioned by s. 5(6)(a) of the Immigration Act 1999 ("the 1999 Act") (as inserted by s. 1O(b) of the Illegal Immigrants (Trafficking) Act 2000).
7. It is also true, of course, that, as Ryan J. pointed out in Arra v. Governor of Cloverhill Prison  IEHC 12, the civil detention at issue here is judicially supervised, something which is not the case with regard to the detention under s. 5(6)(a) of the 1999 Act. It is equally true that the detention is clothed with safeguards. Thus, the applicant may be detained for a maximum of 21 days having been brought before a District Judge as soon as practicable: s. 9(10)(a). The detention may only be authorised in accordance with law in respect of a range of specified grounds (the nature of which I shall presently describe) and the District Judge has the option of releasing the applicant subject to conditions (s. 9(10)(c)), such as surrendering a passport, reporting to the immigration authorities and residing in a particular distinct in the State. Moreover, as Ryan J. noted in Arra:-
As to the hearing which takes place in the District Court, it is of course open to an applicant through his legal representative to point to deficiencies in the evidence or the case made by the Garda or Immigration Officer. An applicant may or may not give evidence at the hearing. The Garda or Immigration Officer may be cross-examined and submissions may be made. There is nothing to prevent a new case being made if a further application for detention is made. The case may be made to the Judge that the cumulative periods of detention of the applicant are excessive, notwithstanding the need to process the application for a declaration and the State can be called upon to tell the court how the application is progressing. These elements seem to me to amount to satisfactory protections of the applicant."
9. While recognising the value of these safeguards, given that this procedure involves the detention on a preventative basis of an adult with full capacity who is not charged with a crime, it seems to me that these are the absolute minimum that would be necessary in a society committed to the rule of law and the protection of personal liberty. It cannot be overlooked that the concept of preventative detention, while not unknown in our law, is and must remain an exceptional measure.
10. When Article 40.4.1 provides that no person shall be detained "save in accordance with law", this means that the law in question must one which respects "the fundamental norms of the legal order posited by the Constitution: see King v. Attorney General  I.R. 227,257 per Henchy J. While preventative detention is not excluded on an ex ante basis, respect for these fundamental norms means that the necessity for any such detention must be compelling: this seems necessarily implicit in the comments of Keane C.J. in Re Article 26 and the Illegal Immigrants (Trafficking) Bill  2 IR 360 at 408-412.
11. In that case, of course, the constitutionality of the detention provisions contained in s. 5 of the Immigration Act 1999 was upheld, precisely because detention provisions of this kind were deemed necessary to enable effect to be given to deportation orders. Those provisions apply only to persons who have already been refused asylum and they, of course, are person who by definition have no right to remain in the State. Section 5(6) contains, moreover, a maximum detention period of eight weeks, albeit (unlike the present case) there is no direct judicial supervision of that detention. It was against that particular background that the constitutionality of the Bill was upheld, precisely because the necessity for a measure of this kind was objectively necessary to uphold a fundamental State interest, namely, the effective and orderly operation of the deportation system.
12. The fact that the applicant may- presently- have no legal right to be in the State does not in itself mean that the State can detain him pending the outcome of an application for asylum. Had the 2000 Bill contained a measure that would have potentially sanctioned the preventative detention of asylum seekers merely (and I again emphasise this word) because they were otherwise in breach of statutory regulation or administrative rules and practices governing the asylum and immigration system, one must greatly doubt whether it would have survived constitutional scrutiny by the Supreme Court.
13. If it is said that there is a compelling State interest in ensuring that persons who happen to have committed breaches of these immigration rules do not remain at liberty and must therefore be detained on a preventative basis pending the outcome of their applications for asylum simply by reason of this fact, then I fear that preventative detention would become routine and regular. I refuse to believe that such a state of affairs could be constitutionally sanctioned in a State which is committed to the rule of law and where the words of the Preamble commit the State to ensuring that the "dignity and freedom of the individual may be assured."
14. These considerations must inform both the scope of the sub-section, as well as its judicial application.
15. The fact remains, moreover, that an applicant so detained might well be detained almost indefinitely - albeit under judicial supervision of the District Court for months while the asylum application is being examined and determined. While conscious of the firm belief held by the Garda National Immigration Bureau that this application for asylum is a belated ruse devised by the applicant to thwart his deportation, nevertheless the fact that an applicant could be so detained in this fashion in an apparently open-ended fashion (albeit again subject to judicial supervision by the District Court) once again re-inforces the need for enhanced judicial oversight of the arrest process and, specifically, the grounds for such arrest and the grounds advanced to the District Court
The statutory background
(d) intends to avoid removal from the State in the event of his or her application for asylum being transferred to a convention country pursuant to section 22,
(e) intends to leave the State and enter another state without lawful authority, or
(f) without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents, he or she may detain the person in a prescribed place (referred to subsequently in this Act as "a place of detention").
17. Section 9(10) provides:
(b) Where a person is brought before a judge of the District Court pursuant to paragraph (a), the judge may-
(i) subject to paragraph (c), and if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person, commit the person concerned to a place of detention for a period not exceeding 10 days from the time of his or her detention, or
(ii) without prejudice to paragraph (c), release the person and the judge may make such release subject to such conditions as he or she considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:
(II) that he or she reports to a specified Garda Síochána station or immigration officer at specified intervals,
(III) that he or she surrenders any passport or travel document in his or her possession.
18. The language and structure of s. 9(8)(a) calls for some comment. First, s. 9(8)(a) requires that the arresting member must suspect "with reasonable cause". While the section calls for judgment on the part of the arresting member, the use of the words "with reasonable cause" demonstrates that the factual reason for the arrest must be capable of objective justification. Second, the arresting member must thus reasonably suspect that the arrested person must pose a "threat" to either national security or public order. In other words, the arresting member will normally be required to make a judgement about future behaviour based on past conduct. Third, the context in which the language of s. 9(8)(a) appears is obviously of great significance.
19. In this regard, it will be noted that the reference to public order is juxtaposed with the words "national security" in the very same sentence. This immediately has implications for the meaning to be ascribed to these words. Taken in isolation and on their own, the words "public order" are capable of meaning as having a very wide meaning and, indeed, any breach of the law is itself capable of being described as a a threat to public order.
20. The words in question do not, however, appear in isolation but are rather placed in a particular statutory context. The words rather draw meaning from that context and the present case represents a classic example of the application of the principle of noscitur a sociis ("known by its companions"). It is clear that the sense of public order that is involved here is that which is akin to- albeit somewhat different from- national security. As thus stated, the words "public order" refer to public order in the narrower sense of that term, involving a serious threat to fundamental State interests in much as the same general way as might be involved in a threat to national security.
21. As Stamp J. famously observed in Bourne v. Norwich Crematorium Ltd.  1 W.L.R. 691, 696:-
23. Henchy J. pointed out that the words "grossly offensive" did not appear in isolation, as the statutory prohibition was against "any words, marks or designs of an indecent, obscene or grossly offensive character." He continued:-
25. As the Court of Justice observed in Case C-482/01 Orfanopoulous  ECR 1-5257 with respect to the principle of public policy in immigration matters:-
27. As I pointed out in my own judgment in Ezenwaka v. Minister for Justice and Equality  IEHC 385 (a case where I also applied the noscitur a sociis principle in the course of interpreting a reference in s. 4 of the Immigration Act 2004 to public policy which was placed in the same sub-section as a reference to national security), a good example in this context is provided by the decision of the English Court of Appeal in R. (Farrakhan) v. Home Secretary  QB 1391. In this case a well known radical preacher known for highly controversial views was refused entry into the United Kingdom because, as Lord Phillips M.R. put it, the Home Secretary had formed the view that this would be contrary to public policy in view of "the risk that because of his notorious opinions a visit by Mr Farrakhan to this country might provoke disorder". While Mr. Farrakhan may not have committed any criminal offences, the concept of public policy was broad enough to deny him entry by reason of the risk posed to British fundamental interest by the threat of public disorder. One might venture the similar view that had such an applicant applied for asylum here he might have been lawfully detained under s. 9(8)(a) on the ground that he posed a threat to public order.
28. All of this is re-inforced by a consideration of another companion sub-section, s. 9(8)(b), which enables the member of An Garda Síochána to effect an arrest where he or she suspects that the asylum-seeker has "committed a serious non-political crime outside the State." This is a further indicator of what is envisaged by in s. 9(8)(a), because it would be strange if an asylum seeker could be arrested and placed in preventative detention by reason of a future threat to public order posed by the fact that it is believed that he has, for example, committed relatively minor offences in the State involving non-compliance with the immigration rules, whereas a person who seeks asylum immediately upon his arrival could only be arrested where it is reasonably suspected that he has committed a serious non-political criminal offence outside of the State.
The decisions of this Court in Bennetts and Yong Dong
30. Birmingham J. added so far ass. 9(8)(a) was concerned:
32. Different considerations apply to the decision of Charleton J. in Yong Dong v. Governor of Cloverhill Prison, an ex tempore judgment delivered on 13th November 2012 in respect of which a transcript of the argument and judgment has been supplied to me. Here the applicant was also a Chinese national who had been working illegally and living in the State for several years. He was arrested pursuant to s. 9(8)(a) when he applied for asylum. Charleton J. held that the arrest was lawful for the following reasons:
34. It is equally clear from the judgment of Clarke J. in Kadri v. Governor of Cloverhill Prison  IESC 27,  2 I.L.R.M. 392, 400-401 that prior decisions of this Court should normally be followed absent special reasons to the contrary. In this case, however, I have concluded with reluctance and diffidence that this is one such case where are such special reasons as would justify me in not following the earlier decision in Yong Dong.
35. These reasons are as follows. First, the decision was delivered ex tempore. Second, it does not appear that the learned judge's attention was drawn to the principle of noscitur a sociis and the seminal decision of the Supreme Court in Dillon which urges the application of this principle in a statutory context such as this. Third, the judge appeared to have been invited to look at the meaning of the words "public order" in complete isolation, instead of in juxtaposition to the companion words "national security" in s. 9(8)(a). Nor was any reference made by counsel to the possible implications of the words "serious non-political offence" in s. 9(8)(b). Fourth, reference was not made to the principles articulated in cases such as King and, specifically, the fundamental principle that the necessity for any preventative civil detention must be compellingly established if the fundamental constitutional norms contained in Article 40.4.1 regarding personal liberty are to be respected and vouchsafed. Fifth, if I may venture to repeat what I said in A v. Minister for Justice, Equality and Law Reform  IEHC 397, the issue here is "fundamental and goes to the heart of our constitutional protection", since it touches on the scope of the power to effect a form of preventative detention.
36. If Yong Dong correctly represents the law, it means that the District Court could direct the detention of asylum seekers under s. 9(8)(a) via the making of an order under s. 9(10)(b)(i) simply because it is believed that they have committed a series of routine immigration offences in the past (in respect of which, let it be again recalled, in this example they would have not even been charged, let alone convicted) and, on that basis, they pose a threat to public order in the future. If that were the test, then there would be a danger that preventative detention might well become a fairly regular feature of the immigration system, instead of that which the Oireachtas seems to have had in mind, namely, that preventative detention of asylum seekers was to be an exceptional measure designed for exceptional cases.
37. If, moreover, applicants for asylum could be detained on this broad understanding of what constituted public order, then the constitutionality of this measure would be very much open to question. Insofar as preventative detention is known to our law, it is a failsafe measure designed for exceptional circumstances. Certainly, it is hard to see how the routine application of such a power in such circumstances would survive any realistic proportionality analysis of the kind envisaged by the Supreme Court in Damache v. Director of Public Prosecutions  IESC 12 if the constitutionality of the measure were to be challenged. Put another way, the constitutionality of s. 9(8)(a) rests on the premise that the objective necessity for such detention will be compellingly established and this in turn must powerfully influence this Court's interpretation of the basic vires of the scope of the power to arrest and detain pursuant to this sub-section and to s. 9(10)(b)(i).
38. I would, of course, normally follow a decision of this Court even where I disagreed with it: see, e.g., my own judgment in AG v. Residential Institutions Redress Board  IEHC 492. But since it does not appear that all the relevant arguments and authorities were canvassed before the learned judge in Yang Dong and since the matter touches gravely on constitutional fundamentals regarding the protection of personal liberty, I believe that special circumstances exist such as would justify me in not following this decision.
40. First, the power to arrest an applicant for asylum under s. 9(8)(a) and to detain him or her under s. 9(10)(b)(i) of the 1996 Act for a period of up to twenty-one days represents a form of preventative civil detention which, if the constitutional guarantee in Article 40.4.1 is to mean anything at all, means that the objective necessity for such detention must be compellingly established.
41. Second, these constitutional considerations must inform and of necessity de- limit these powers to arrest and detain. This is underscored here by the application of the principle of noscitur a sociis, so that the fact the words "public order" are juxtaposed beside the words "national security." Adapting the language of Henchy J. in Dillon, this assemblage of words means that the phrase "public order" must be given its narrower and more restricted meaning. In that sense, the reference to public order refers to the threat posed to fundamental State interests by the likely conduct or even, in particularly unusual cases, the very presence in the State of the applicant for asylum.
42. Third, the applicant's admitted conduct in flouting the immigration regime by, for example, not co-operating with the immigration authorities and working illegally is naturally to be deplored. But his conduct does not threaten fundamental State interests and there are no compelling State interests which would justify his detention on a preventative basis.
43. As the applicant's conduct did not- and could not- in itself threaten public order in the special sense which I have held must be ascribed to these words in s. 9(8)(a) (and by extension, s. 9(10)(b)(i)), it follows, therefore, that his arrest and subsequent detention on this basis was unlawful. It was for those reasons that I directed his release pursuant to Article 40.4.2 of the Constitution.