H134
Judgment Title: Ni -v- Garda Commissioner Neutral Citation: [2013] IEHC 134 High Court Record Number: 2013 405 SS Date of Delivery: 27/03/2013 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 134 THE HIGH COURT IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION [2013 No. 405 SS] BETWEEN/ CHAOXIA NI APPLICANT AND
GARDA COMMISSIONER RESPONDENT JUDGMENT of Mr. Justice Hogan delivered the 27th March, 2013 1. In these proceedings brought under Article 40.4.2 of the Constitution, the applicant, Mr. Ni, a Chinese national, seeks an inquiry into the legality of his detention. Mr. Ni originally arrived at Dublin airport on a flight from Paris around midday on 28th February 2013, having originally travelled from Shanghai. He was, however, refused leave to land by Mr. Gerry Tucker, an immigration officer, in circumstances I will presently describe. 2. In these proceedings two issues arise. First, was Mr. Ni. lawfully refused leave to land in the State? Second, was his subsequent arrest and detention lawful? 3. As Mr. Ni presented on arrival at the immigration desk on the day in question, Mr. Tucker engaged him in conversation. It was clear to Mr. Tucker that Mr. Ni failed to understand his questions. It is, however, important to state that Mr. Ni was in possession of an Irish multiple entry visa which had been issued on 6th July, 2012, and was due to expire on 8th March, 2013. This visa enabled Mr. Ni to attend here for the purposes of study. It is also common case that the student holders of such visas are allowed to work up to 20 hours per week during term time, and up to 40 per week outside of term time. 4. Mr. Tucker found the fact that Mr. Ni was unable to comprehend his questions somewhat strange given that he had been registered as having arrived in the State in 2006, and that he had been a student here for more than six years. Mr. Ni could not even identify the name of the college he was attending. Mr. Tucker made a number of calls to various language schools in Dublin but Mr. Ni ultimately then produced a business card for a particular language institution. Mr. Tucker contacted that institution and verified that the applicant was, indeed, registered as a student with that college. While Mr. Tucker gave evidence (which I accept) that Mr. Ni told him he was studying English, it appears that Mr. Ni was actually registered for an A level business studies course. 5. Following further queries during the course of the day, a senior official from the college in question telephoned Mr. Tucker and confirmed that Mr. Ni was in fact registered in the college and that his attendance record was approximately 70%. (It appears that an attendance rate of at least 70% is expected of such foreign students by the immigration authorities). While Mr. Tucker queried the applicant’s poor grasp of English – especially in view of the fact that he had apparently been studying the subject or, at least, a business subject in English for at least the last six years - it cannot be said that Mr. Tucker received a completely satisfactory response to that inquiry. 6. At that point Mr. Tucker went to meet the applicant’s brother in law, Mr. Xie, in the arrivals hall. Mr. Xie was unaware of the applicant’s course of studies, but he did inform Mr. Tucker that Mr. Ni was working in a meat factory. Upon receipt of this information Mr. Tucker spoke with the owner of the meat factory and he was informed that the applicant was working some 30 to 40 hours per week. 7. At that point Mr. Tucker was satisfied that the applicant was in breach of the terms of his original visa and was not honouring its conditions regarding the working hours. This was conveyed to Mr. Ni through an interpreter and he did not dispute this. 8. Having consulted with his colleagues, Mr. Tucker then refused Mr. Ni leave to land pursuant to s. 4(3)(k) of the Immigration Act 2004 (“the 2004 Act”). While Mr. Ni was in possession of a valid Irish visa this, in itself, did not give him an automatic right to be in the State or otherwise to dispense with the leave to land formalities. The term “Irish visa” is defined by s. 1(1) of the Immigration Act 2003 (“the 2003 Act”) as meaning:-
11. Section 4(3) then provides in relevant part:-
… (b) that the non-national intends to take up employment in the State but is not in possession of a valid employment permit (under the meaning of the Employment Permits Act 2003) … (e) that the non-national, not being exempt by virtue of an order under s. 17, from the requirement to have an Irish visa, is not the holder of a valid Irish visa, … (k) that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national.” 13. Nor could it be said that Mr. Ni intended “to take up employment in the State for which he needed a valid employment permit” for the purposes of s. 4(3)(b). This obviously did not apply because Mr. Ni was already in employment in the State and did not, in fact, require a valid employment permit in view of the conditions attaching to his multi-entry visa. 14. Mr. Ni was, however, refused leave to land on the ground that he intended to enter the State “for purposes other than those expressed by the non-national” within the meaning of s. 4(3)(k). Most visitors come here for a variety of purposes. It cannot be suggested, for example, that a person who tells an immigration officer that he or she wishes to attend a conference could be refused leave to land because it became clear that they also planned to visit a museum or engage in some shopping. The reference in s. 4(3)(k) to purposes other than those expressed must accordingly refer to purposes which, objectively speaking, would materially affect or influence the judgment of an immigration officer as to whether leave to land should be granted. 15. In the course of preparing for this Article 40 application, various inquiries have subsequently been made in relation to Mr. Ni’s employment record on behalf of the immigration authorities. It would seem that from the employee records which were supplied to the Gardai that Mr. Ni was working long hours at a particular meat factory in Dublin, often commencing at 6am until 5pm or even later, more or less every weekday. In the light of this information it is very difficult to avoid forming the impression that Mr. Ni was not really attending his course – whether it was English or business studies - or to see how he could really have achieved a 70% attendance rate at that college. 16. This evidence can only be regarded as unsettling and suggests that Mr. Ni was really here for the purposes of employment rather than that of study. Even if regard, however, is had only to the information which Mr. Tucker had at the time he refused leave to land, it seems clear that everything pointed to the fact that Mr. Ni had engaged in significant and continuous breaches of the terms of his multi-entry visa regarding the circumstances in which he could take up employment. 17. In these circumstances, I am driven to the conclusion that Mr. Tucker could properly have been “satisfied” that Mr. Ni sought entry for an illicit purpose within the meaning of s. 4(3)(k). The use of the term “satisfied” by the legislative draftsman is something of a term of art in the context of a requirement that a decision maker exercising a discretionary statutory power must be “satisfied” of certain facts. It imports the triple requirement that the decision must be taken bona fide, that it be not unreasonable and is factually sustainable: see, e.g., The State (Lynch) v. Cooney [1982] I.R. 337, 380, per O’Higgins C.J., Kiberd v. Hamilton [1992] 2 I.R. 257, 265, per Blayney J. and Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 52, [2013] 1 ILRM 73, 76, per Fennelly J. Conclusions regarding the leave to land decision 19. It does not, however, follow from this that the subsequent detention of the applicant was necessarily lawful. It is to that issue to which we may next turn. The legality of the arrest and detention 21. It was then intended that Mr. Ni be removed from the State on an early flight on the following morning. In the meantime, however, an application had been made to me at my private residence later night for an inquiry into the legality of his detention under Article 40.4.2 of the Constitution. I directed such an inquiry and ordered that Mr. Ni be produced before me at 2pm on the following day. An inquiry was subsequently conducted over several days and Mr. Ni was released on bail pending the delivery of the present judgment. 22. Section 5(2)(a) of the 2003 Act provides:-
24. The word “prescribed” is defined by s. 1(1) of the 2003 Act as meaning “prescribed by regulations made by the Minister”. The applicable regulations are the Immigration Act 2003 (Removal Places of Detention) Regulations 2003 (S.I. No. 444 of 2003)(“the 2003 Regulations”). Article 2 of the 2003 Regulations prescribes “every place listed in the Schedule to these Regulations and every Garda Station is a place prescribed for the purposes of s. 5(2)(a) of the Immigration Act 2003.” The places listed in the Schedule are all either detention centres or prisons. 25. While there is a Garda Station located at the airport, Inspector Murray gave evidence that it is not a fit condition to receive detained persons, since the holding cells would not satisfy appropriate minimum standards. It is accordingly accepted that for the period between 2.45pm until sometime after 9 pm when he was removed to Clontarf Garda Station that Mr. Ni was not detained in a “prescribed place” within the meaning of s. 5(2)(a) and nor was he under the custody “of the officer of the Minister or member of the Garda Síochána for the time being in charge of that place” during this period. 26. It is further clear that in the event that this detention was held to be unlawful, it would equally follow that the continuation of that detention at Clontarf Garda Station would also be rendered unlawful by reason of this initial illegality. Just as in Oladapo v. Governor of Cloverhill Prison [2009] IESC 42, it can be said in the present case that, in the words of Murray C.J., “that unlawful arrest and consequential unlawful detention are the dominant circumstances in this case”. Everything turns, therefore, on whether the detention of the applicant at the Terminal 2 building for a period of somewhat more than five hours was lawful. 27. There is no question at all but that the detention of Mr. Ni at Terminal 2 was more convenient for all concerned. It would scarcely have made any sense for Mr. Ni to be taken to a Garda station such as Clontarf or Santry, still less to some other place of detention for such an impossibly short duration pending the departure of the next aircraft a few hours later. Counsel for Mr. Ni., Mr. Fitzgerald S.C., suggested that the immigration officers could have exercised their powers under s. 14 of the 2004 Act whereby persons who have been refused leave to land can be required to “reside or remain in a particular district or place in the State” and thereby require Mr. Ni to remain – for example – within the Terminal 2 building. 28. For my part, however, I accept the evidence of Inspector Murray that this would not have been operationally feasible in the case of Mr. Ni and that this power, when exercised, is designed principally for families with young children who have been refused leave to land. (In any event, the power of arrest under s. 5(2)(a) may not be exercised in the case of minors). 29. The issue, therefore, which remains is whether the detention of the applicant in the Terminal 2 building was lawful. In my view, it was not. 30. The approach to the construction of statutory provisions of this nature has been recently re-stated by the Supreme Court in unambiguous terms in Kadri v. Governor of Cloverhill Prison [2012] IESC 27, [2012] 2 ILRM 392. Here the question was whether there was any jurisdiction to extend the eight week detention period of asylum seekers pending deportation in accordance with s. 5(6) of the Immigration Act 1999. The Court held that there was not and accordingly the detention of an asylum seeker beyond that period was held to be unlawful even though the applicant had brought about this state of affairs by refusing to co-operate with his deportation and by frustrating its operation by acts of resistance. 31. All three members of the Court were unanimous on the approach to be adopted to issues of statutory interpretation in cases of this kind. Fennelly J. observed ([2012] 2 ILRM 392, 400):
33. In his concurring judgment, MacMenamin J. said that ([2012] 2 ILRM 392, 405) “whatever the applicant’s merits, he is entitled to rely on a literal interpretation of the statute.” 34. Clarke J. agreed that s. 5(1) of the Interpretation Act 2005 did not come into play, mainly because the construction offered by the applicant was neither ambiguous or absurd or otherwise fail to reflect the plain intention of the Oireachtas. Clarke J. then observed ([2012] 2 ILRM 392, 402-403):
36. How long, for example, might such a visitor refused leave to land be permitted to be detained in the airport precincts? Should this depend on whether there is a functioning Garda station in the immediate vicinity? Would the same rules apply to both airports and harbours? Who should take charge of the person so detained while that person is held in the precincts of either an airport or a seaport? At what point would the person so detained have to be brought from the airport or seaport to a prescribed place of detention such as a Garda station or a prison? 37. The fact that the Oireachtas might have catered for some or all of these questions and that there is a range of possible solutions to each of these queries provides clear evidence of the fact that the resolution of the conundrum thrown up by this case has to be legislative in nature and that such lies beyond the capacity of the judicial branch to supply. Conclusions on the arrest and detention issue 39. It follows, therefore, that the detention of the applicant from 2.45pm onwards on that day must be adjudged to be unlawful. Since it is the validity of that custody which it at issue before the Court, it follows, therefore, that I must direct the release of the applicant in accordance with Article 40.4.2 of the Constitution. |