High Court of Ireland Decisions

 


Neutral Citation No. [2004] IEHC 392

THE HIGH COURT Record Number: 2004 No. 2073 SS

Between:

V S

Applicant

And The Governor of Cloverhill Prison, and The Minister for Justice, Equality and Law Reform

Respondents

THE HIGH COURT Record Number: 2004 No. 2076 SS

Between:

R T

Applicant

And The Governor of Cloverhill Prison, and Judge Michael Connellan

Respondents

Judgment of Mr Justice Michael Peart delivered the 24^th December 2004:

Each of the above applicants requests the Court to inquire into the lawfulness of their detention pursuant to Article 40.4.2 of the Constitution. While each applicant's factual background is somewhat different the point at issue is the same and for that reason I will deal with the applications in this single judgment.

The essential similarity in each case is that they are Romanian nationals who, albeit on different dates and by different routes, arrived in this State on false/forged Lithuanian passports.

Facts re: V S:

Mr S arrived at Dublin Airport on the 14^th November 2004 on a flight from Malaga, Spain and upon arrival presented a false Lithuanian passport, and completed a landing card stating falsely thereon that he was the person whose name appeared on that passport. It seems to be the case that a couple of weeks previously he had used the same passport when arriving at Dublin Airport and seemingly without incident.

At any rate, it appears from the information of D/Garda Twyford sworn for the purpose of an application to the District Court, that "later on" after his arrival on the 14^th November 2004, he completed a second landing card in his correct name. He was refused leave to land and was detained in Cloverhill prison pending the making of arrangements for his removal back to Malaga. The false/forged Lithuanian passport was impounded by the authorities on the 14^th November 2004.

However, while in Cloverhill prison he made an application for asylum, and on the 16^th November 2004 he was brought to Dublin Airport where his application for asylum was processed and he was interviewed with the assistance of an interpreter. Thereupon he was detained under the provisions of s. 9(8)9f) of the Refugee Act, 1996 as amended, which provides as follows:

"9 (8): Where an immigration officer or a member of An Garda Siochana, with reasonable cause, suspects that an applicant –

(a) ………

(b) ………

(c) ………

(d) ………

(e) ………

(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")"

On the following day the 17^th November 2004, he was brought, pursuant to the provisions of s.9(10) of the Act, before a Judge of the District Court when an application was made for an order for the committal of the applicant under s. 9(10)(i)(b) of the Act for a period not exceeding ten days from the date of his detention. Under this provision of the Act, such an order may be granted if the District Judge is satisfied that one or more of the paragraphs of subsection 8 of s.9 applies to the applicant. In the case of Mr S (and also Mr T) the District Judge was satisfied that s.9(8)(f) applied and made an order of committal on that basis.

His detention was authorised until the 7^th December 2004, and on that date he was further remanded until the 16^th December 2004, by which time his own proper and genuine Romanian passport had arrived in the State and his proper identity was established to the satisfaction of the authorities here. On the 16^th December 2004 the District Judge made a further order of committal on the basis of s.9(8)(f) of the Act quoted above. According to the affidavit of the applicant's solicitor evidence was given before the District Judge that the enquiries into the question of identity and identity documents had been completed and there was no evidence given that the applicant was at that time in possession of any other forged identity document.

The only evidence before the Judge, in relation to forged identity documents, was that on the 14^th November 2004, which is a date prior to the time at which the applicant made his application for asylum thereby becoming "an applicant" for the purpose of s. 9 of the Act, Mr S had been in possession of a forged passport and that it had been impounded on that date. In other words, the submission now is that on the date on which he applied for asylum, being two days after the passport was impounded, there could not have been a reasonable suspicion that he "is in possession of forged identity documents", since the forged passport had been taken from him permanently immediately upon his arrival and on which date he did not claim asylum. On that date s.9 did not apply to him.

It is therefore submitted that the District Judge had no power to make an order of committal on the 16^th December 2004, since at the time of the making of the application for asylum on the 16^th November 2004, the applicant was not in possession of a forged identity document.

The same point is made in the case of Mr T, and there is no need to set out the facts which are individual to his case, but they are set forth in his grounding affidavit.

Counsel for the applicant has urged that the Court must interpret the intention of the legislature from the plain and ordinary meaning of the words used in the Act, and that it is thereby clear that the fact that an applicant for asylum may at some date prior to his application for asylum have had a forged passport or identity document in his possession is of no relevance for the purpose of s.9(8)(f) of the Act, and that the Court cannot interpret that section as if it contained after the word "is" wording such as "or has been at any time previously". It is submitted that if that had been the intention of the legislature it could easily have said so, and that the Court would be straining too hard by placing such a purposive interpretation on the section.

Counsel for the Respondent has urged that a wider definition of possession than actual possession should be permitted, such as was found in The People(DPP) v. Foley [1995] 1 IR. 267 where certain inferences were drawn indicating that the accused man was aware of the presence of guns and ammunition in the bed-sit he occupied, and had them under his control, and that from the evidence the Court was entitled to deduce that he was "in possession" of them. A number of passages from the judgment were opened. But I am of the view that the context of possession in that case is so far removed from the present case as to not be of assistance. There is no doubt in my view that possession in any sense of the forged identity documents ceased upon the removal of same from the applicants when they were impounded.

The Court was also referred on behalf of the respondents to a passage at paragraph 14.24 in The Irish Legal System by Byrne and McCutcheon, 4^th.ed, Butterworths, where the learned authors refer to the invocation of "the golden rule" of statutory interpretation in circumstances where an application of the literal rule would give rise to an absurdity or inconsistency. The authors quote a passage from the judgment of Burton J. in Warburton v. Loveland [1828] 1 Hud & BNFL 623 as follows:

"I apprehend it is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or any declared purpose of the statute, or if it would involve any absurdity, repugnance, or inconsistency in its different provisions, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such inconvenience, but no farther."

Counsel has urged that the Court should interpret the provision in s.9(8)(f) as meaning that if at any time after arrival, and even prior to the application for asylum being made the applicant had been in possession of a forged document, the section could apply for the purpose of making an order for the applicant's committal pending the completion of the application process.

These applicants are in a somewhat unusual category of person. They arrived here on false passports – there is no doubt about that. But on arrival they did not seek asylum. That happened later. They were detained at that point as illegal entrants to the State. They were not at that point within the asylum process and the provisions of the Refugee Act, 1996, as amended did not apply to them. They were detained under the provisions of other legislation at that point, I presume. At that point also their forged identity documents were taken from them, and with no intention to return them to them at any time. From that point there were not in possession of the forged documents.

In the case of both applicants, they made an application for asylum at a later date, and that application changed their status from being illegal entrants to the State, to being applicants for asylum, as a result of which they at that point in time, and not sooner, came within the provisions of the Refugee Act, 1996 as amended. They thereupon achieved leave to remain in the State as asylum seekers. It was only at that point that each became an applicant for the purpose of s. 9(8) of the Act. Neither had at that point in time in his possession any forged identity document.

In my view the Act was intended to deal with the more usual situation where a person arrives in the State and immediately upon arrival seeks asylum by completing the ASY1 form on arrival and is thereafter processed. The scheme of the Act and the procedures to be applicable to such applicants is clear. The provisions of the Act, and in particular s.9(8) are not intended to cover a situation where, perhaps several weeks or months after an illegal entry into the State on forged documents, which are impounded, such a person then applies for asylum. In my view if the legislature had intended such a position it could easily have said so. There is a clear meaning capable of being gleaned from the plain and ordinary meaning of the words used in the section. There is no ambiguity to be resolved. If I were to interpret the section as including the present applicants' situation, I would be going beyond giving meaning to the words. I would be changing or amending the legislative provisions in order to fill a gap now perceived, and that, in my view would be to go beyond what could be permissible by virtue of a purposive or rectifying construction.

In these circumstances I am of the view that the orders under which each applicant is held ought not to have been made and that their detention is unlawful and they should be released. I so order.

Approved Peart J.