Judgment Title: G.E. v The Governor of Cloverhill Prison & anor
Neutral Citation:  IESC 41
High Court Record Number: 2011 1616 SS
Date of Delivery: 28/10/2011
Court: Supreme Court
Composition of Court: Denham C.J., Fennelly J., O'Donnell J.
Judgment by: Denham J.
Status of Judgment: Approved
Outcome: Allow appeal
Notes on Memo: Reasons for decision given on 26th August 2011
THE SUPREME COURT
[Appeal No: 342/11]
In the matter of an enquiry under Article 40.4.2 of the Constitution of Ireland, 1937
The Governor of Cloverhill Prison
The Minister for Justice and Equality
Judgment of the Court giving the Reasons for its decision, delivered on the 28th day of October, 2011 by Denham C.J.
1. This is an appeal by Gerard Ejerenwa, the applicant/appellant, referred to as "the appellant", from the ex tempore judgment and order of the High Court (Ryan J.) made on the 10th August, 2011.
2. The appellant sought an enquiry under Article 40.4.2 of the Constitution of Ireland, 1937, in the High Court. This appeal was listed as a matter of urgency, for hearing on the 26th August, 2011, as it was submitted that the appellant was unlawfully detained by the Governor of Cloverhill Prison, the respondent, referred to as "the respondent", in circumstances where the appellant enjoys a constitutional right not to be deprived of his liberty save in accordance with law.
3. Having heard the appeal the Court ordered, on the 26th August, 2011, that the appellant be released and it was indicated that the reasons for the decision would be given at a later date. In the judgment delivered today the Court gives the reasons for the decision of the 26th August, 2011.
The High Court
4. On the 9th August, 2011, the High Court (Ryan J.) ordered, in accordance with Article 40.4.2 of the Constitution, that the respondent do produce the body of the appellant and do certify in writing the grounds of his detention.
5. The application on behalf of the appellant was grounded upon the affidavit of Mark A. Quinn, solicitor for the appellant, sworn on the 9th August, 2011, to which affidavit there were a number of exhibits.
6. In response, an affidavit was sworn by Detective Garda Philip McGovern, of the Garda National Immigration Bureau, on the 10th August, 2011, to which affidavit there were a number of exhibits. An affidavit was deposed also by Detective Garda Paul Dunne of the Garda National Immigration Bureau on the 10th August, 2011.
7. Mark A. Quinn swore a supplemental affidavit on the 11th August, 2011, which was also before the High Court.
8. No oral evidence was given in the hearing before the High Court.
9. Before this Court was counsel's note of the ex tempore judgment of the High Court. The learned High Court judge agreed with counsel's note and adopted it as his note.
10. The High Court ordered, on the 10th August, 2011, that the return to the order of the 9th August, 2011, was good and sufficient and that the appellant was being detained in accordance with law.
Notice of Appeal
11. The appellant appealed against the said order and judgment on eight grounds. These grounds were that the learned High Court judge:-
(ii) erred in law in holding himself satisfied that the appellant was being detained in accordance with the law;
(iii) erred in law in holding that the appellant was lawfully detained;
(iv) erred in law in holding that the failure to specify the time and/or date of the appellant's arrest on the detention order did not invalidate the said order;
(v) erred in law in failing to hold that that absence of a settled intention on the part of the Notice Party to remove the appellant to another State rendered his detention pursuant to the provisions by s. 5(2) of the Immigration Act, 2003, unlawful;
(vi) erred in law in failing to hold that where the decision of the Notice Party on the appellant's application for leave to remain and/or subsidiary protection was extant there could be no settled intention on the part of the Notice Party to remove the appellant to another State sufficient to render his detention pursuant to the provisions of s.5(2) of the Immigration Act, 2003 lawful;
(vii) erred in law in failing to consider the lawfulness of the appellant's detention as to the date of the application herein; and
(viii) erred in law or in fact or on a mixed question of law and fact in holding that the appellant informed the agents of the Notice Party that this was his first arrival at the State's border.
(ii) that, even if valid, the order must show on its face the duration of time permitted for a valid detention, i.e. the eight weeks; and
(iii) where the decision of the Minister on the appellant's application for leave to remain and/or subsidiary protection was extant, there could be no settled intention on the part of the Minister to remove the appellant to another State sufficient to render his detention pursuant to the provisions of s.5(2) of the Immigration Act, 2003, lawful.
13. The appellant was refused permission to enter the State on the 1st August, 2011, and he was detained pending his removal from the State, on the 1st August, 2011, in Dundalk Garda Station, and, on the 2nd August, 2011, in Cloverhill Prison.
14. Detective Garda Philip McGovern deposed that he is a member of An Garda Síochána and is attached to the Immigration and Border Control Unit, having been appointed an immigration officer by the Minister under s.3(1) of the Immigration Act, 2004. He swore in his affidavit that on the 1st August, 2011, he was on immigration patrol accompanied by Detective Garda Paul Dunne. At 5 p.m. they stopped an Ulsterbus which had crossed the border from Northern Ireland. The appellant could not provide him with any form of identification and the appellant accompanied the gardaí to Dundalk Garda Station.
15. There is a conflict between the affidavit of the gardaí and that of the solicitor for the appellant on some issues of fact. The appellant did not swear an affidavit on his own behalf in this application.
16. The members of An Garda Síochána gave evidence on affidavit that the appellant filled out a landing card stating that he was from Sierra Leone. The members of An Garda Síochána did not accept that he was from Sierra Leone and the appellant was asked to complete a new landing card, which he did and on that he stated his nationality to be Nigerian.
17. In a supplemental affidavit of the solicitor for the appellant, Mark A. Quinn, Mr. Quinn deposed of the events as follows:-
I say that the applicant/appellant instructed me following the proceedings in the High Court that while he filled out the landing cards himself this was on the instructions of the Gardaí and he felt himself pressurised into completing a second landing card containing a reference to Nigeria and stating his nationality to be Nigerian."
19. The members of An Garda Síochána deposed that the appellant was refused leave to land for not having a valid passport, a valid visa, and because he would travel to Northern Ireland and/or to Great Britain where he would not have permission, under s.4(3)(g) and (h) of the Immigration Act, 2004. The appellant was informed of the reasons for his refusal and he was given notice in writing of the reasons, which he declined to take. In fact, he was given three sheets of paper. On each sheet a separate reason for refusing leave to land was stated. On one document, reference was made to the fact that he did not have a valid passport or other equivalent document; on another document, the reason given was that he did not have an Irish visa; a third reason given, also on a separate sheet, was that the appellant intended to travel (whether immediately or not) to Great Britain or Northern Ireland, and would not qualify for admission to Great Britain or Northern Ireland.
20. Detective Garda McGovern also exhibited with his affidavit copies of two landing cards. In one, the appellant gave his date of birth as to the 28th October, 1978, his place of birth as Sierra Leone, his nationality as Sierra Leone, he gave no number for a passport, and he gave his address as 66 Gerard Griffin St., Cork. On the other landing card, he gave his date of birth as the 28th October, 1978, his place of birth as Nigeria, his nationality as Nigerian, no number for a passport, and his address in Ireland as 12 Tallaght St., Dublin 12.
21. There is also before the Court a detention order, made out to the Member in Charge of Dundalk Garda Station, and signed by Philip McGovern, Immigration Officer, Member of the Garda Síochána, stamped the 1st August, 2011, which was executed on the 1st August, 2011. It states:-
Gerard Ejerenwa, DOB 28/10/1978
be detained in Dundalk Garda Station, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003 in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in charge of that place."
Order in issue
23. The order in issue is a detention order made on the 2nd August, 2011. This is the document by which the appellant was being detained. The order is addressed to the Governor of Cloverhill Prison and signed by Philip McGovern, Immigration Officer, Member of the Garda Síochána. It states:-
Gerard Ejerenwa, DOB 28/10/1978
be detained in Cloverhill Prison, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003 in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in charge of that place."
At the foot of the document Detective Garda McGovern certified that he executed this order by lodging the appellant in Cloverhill Prison on the 2nd August, 2011.
24. The first ground of appeal submitted by the appellant is that this document is defective on its face, and because it does not show that the Immigration Officer/Garda Síochána had suspected with reasonable cause that the appellant had been unlawfully in the State for a continuous period for less than three months. It was submitted also that the grounds for refusing the leave to land, which appear on the three separate documents made on the 1st August, 2011, and that the appellant refused to receive, should appear on the face of the detention order. In essence, it was submitted that the warrant of detention must show on its face the basis of its jurisdiction and that the warrant did not do so.
25. Counsel for the State submitted, inter alia, that any order depriving a person of liberty must show the authority under which it was made. The order in this case showed the authority as s.5(2) of the Immigration Act, 2003, and it was submitted that that is sufficient. It is not necessary, it was submitted, to show more. Inter alia, submissions were made as to the difference between judicial warrants and administrative warrants. It was submitted that it was not necessary to state the grounds for the detention on this type of warrant. It was submitted that there was no need for the common law rule today with modern communications. Counsel distinguished between this type of order from that of, for example, a District Court which must show jurisdiction on its face. Counsel argued that a warrant such as exists in this case did not have to set out the reasonable grounds required to exercise its authority.
26. The principle of law at issue in this case is well established. In The State (Hughes) v. Lennon and Ors  I.R. 128 at p.142, Sullivan P. spoke of having no doubt of the principle. He stated:-
27. Clearly the words "or others" in the above quotation includes the immigration officers and members of the Garda Síochána acting under the immigration legislation. Thus such a person must show on the face of the document which he/she creates the facts upon which jurisdiction rests. This general principle applies to the detention order at issue in this case.
28. The general principle is ancient. Indeed in Gosset v. Howard (1845) 10 Q.B. 411 the principle was traced back to Magna Carta, where, at p.431, it was stated that the warrant in that case was contrary to the provision of Magna Carta, in that:-
29. In Simple Imports Ltd v. Revenue Commissioners  2 I.R. 243, the respondents challenged the validity of warrants issued by the District Judges on foot of which officers of the Revenue Commissioners entered and searched a number of premises and seized goods which were alleged to be prohibited and in contravention of customs and excise legislation. It was submitted that it was clear on the face of the warrant that the District Judge had not satisfied himself that there was reasonable cause or grounds for the suspicion of the officer concerned that there were uncustomed or prohibited goods relating to them in the premises, and that the warrants were thus bad on their face and should be quashed on that ground alone. Keane J. (as he then was) stated at p.255:-
I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the district judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the district judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. That proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed."
30. The appellant has invoked his right under the Constitution to habeas corpus. In enquiring under the Constitution as to his custody the Court must examine the validity of the document of the 2nd August, 2011.
31. A document, such as in issue here, should contain clear information on its face as to the basis of its jurisdiction. This information is required so that it be available to, for example, (a) the person in custody, such as the appellant; (b) the Governor of the Prison, or any other, who is holding a person in custody; and (c) the Court which is requested to inquire into the custody pursuant to Article 40 of the Constitution.
32. In this case the document of 2nd August refers only to s.5(2)(a) of the Immigration Act, 2003, referred to as “the Act of 2003”. That is insufficient to show jurisdiction. The document is defective because it does not state on its face the reason for the arrest and detention of the appellant. Section 5(2) confers on an officer or member of the Garda Síochána a power of arrest and detention of “a person to whom this section applies”. Thus it is necessary to see what, if any, provision of s. 5(1) applied to the appellant. Detective Garda McGovern, in his affidavit, swore that the appellant was “refused leave to land”. He thus invoked paragraph (f) of s. 5(1), which was inserted by s. 16(8) of the Immigration Act, 2004. As a result of that amendment, s. 5(1) applies to a non-national who has been refused a permission under s. 4(3) of the Act of 2004, provided that the garda had the additional suspicion, mentioned in s. 5(1) of the Act of 2003, that the appellant had been unlawfully in the State for a continuous period of three months. Section 4 of the Act of 2004 made new provisions for application for permission to land or to be in the State. Section 4(3) lists, at paragraphs (a) to (k) reasons why a person may be refused such permission. Detective Garda McGovern appears to have relied on three of them: (e) not having a valid Irish visa; (g) not being in possession of a valid passport; (h) having the intention to travel to Great Britain of Northern Ireland. However, it was the fact of having refused permission to land or be in the State, for whatever reason, which triggered the power pursuant to s. 5(2) of the Act of 2003 to arrest and detain. The Detention Order of the 2nd August 2011 should have recited the fact of that refusal by Detective Garda McGovern and that, with reasonable cause, he suspected that the appellant had been unlawfully in the State for a continuous period of less than three months. It was not necessary to state the reasons for that refusal. The appellant had been given those reasons in writing, as was required by s. 4(4) of the Act of 2004. They were open to challenge by judicial review, if there were grounds. However, the defect in the Detention Order was the failure to state that the appellant had been refused permission to land and, as required by s. 5(1) of the Act of 2003, that Detective Garda McGovern had “with reasonable cause suspecte[d]” that the appellant had been “unlawfully in the State for a continuous period of less than three months.”
33. As these facts were not on the document of the 2nd August, 2011, this Court released the appellant on the 26th August, 2011.
34. The appellant raised two other categories of appeal. It was submitted that it was necessary to show on its face the time permitted for detention, i.e. eight weeks. The Court is not satisfied that this is a good point. The permitted period of detention is a matter of general law; it is provided for by statute; a warrant of detention is not required to make statements of law. Also, any such requirement could be misleading. For example, the order in issue was made on the 2nd August, 2011. It was the second order. The first was made on the 1st August, 2011. Therefore the eight weeks did not run from the 2nd August, 2011, but from the 1st August, 2011. Further, the legislation permits time to stop running in certain circumstances, for example, if the appellant has instituted litigation, up to and including the determination of the appeal. Thus, if an order on its face stated an eight week period, it would in fact be defective in circumstances where a person had brought litigation, as the time would have stopped running.
35. In the circumstances, there was no necessity to consider the third ground raised. In fact, counsel for the appellant had, as set out previously, informed the Court that the appellant's application for subsidiary protection had been refused.