High Court of Ireland Decisions

1. 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.

2. 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.

3. The principles of law governing the several reliefs sought are as follows:-

4. 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.

5. 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:-

6. 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.

7. An Order prohibiting the Applicants deportation:-

8. 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.

9. Insofar as it is deemed necessary an Order of Certiorari quashing the Deportation Order of 12th April, 2000.

10. 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.

11. 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.

12. 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

13. 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.

14. 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:-

15. Clearly the constitutionality of an Act can be challenged in plenary proceedings without leave. However Order 84 Rule 26 (5) provides as follows:-

16. 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.

17. 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:-

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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-

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. Respondents, albeit in response to a court order;