Supreme Court allows deportation appeal, refusing order to facilitate return pending judicial review.

THE SUPREME COURT

Record Nos. 227-230/05

Record Nos. 70-73/05

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND

IN THE MATTER OF THE HABEAS CORPUS ACT, 1782

BETWEEN/

(1) BOSUN ADEBAYO

(2) PETER CHINEDU IGWE

(3) FOLASHADE JACOB, OYESHOLA JACOB AND RONKE JACOB

(4) JIDE JOHNSON ONDUKAN

Applicants/Respondents

and

COMMISSIONER OF AN GARDA SÍOCHÁNA

Respondent/Appellant

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Notice Party/Appellant

Judgment of Mr. Justice Geoghegan delivered 2nd March 2006

1. Four more or less identical appeals have been brought by the Commissioner of An Garda Síochána and the Minister for Justice,

Equality and Law Reform against the portion of the judgment of the High Court (Peart J.) delivered on the 27th October, 2004 as

provided that the above-named applicants who brought four separate sets of proceedings would be permitted to re-enter the State

having been deported therefrom, pending a final determination of their respective judicial review proceedings challenging the

respective deportation orders or thereafter in the event that such applications be successful. Also before this court is a composite

notice of motion brought in all four sets of proceedings seeking an order that such part of the appeal of the Commissioner and the

Minister as does not relate to a contempt application disposed of by Peart J. should not be heard until such time as there has been

full compliance with certain orders of Gilligan J. which will be hereafter referred to. In relation to each of the appeals there is a “notice

to vary/cross-appeal” relating to various questions which arose before the High Court and which I will specify in more detail later in

the judgment.

2. Taking the motion, the appeal and the cross-appeal combined the issues before this court were essentially threefold. They are as

follows:

1. In a case where an order under Article 40 of the Constitution is granted ex parte in respect of a person detained but about

to be deported and that person is deported before notice of the order is received, is a failure to make a return to the

conditional order by producing the body a contempt of court?

2. Does a preliminary order under Article 40 or its statutory equivalent, a conditional order of habeas corpus in any

circumstance remain effective notwithstanding a) that the relevant person alleged to be detained is out of the jurisdiction

and/or b) no longer in detention?

3. In a case where notice of a preliminary or conditional order of the kind already described and/or an interim injunction

preventing deportation are not implemented because of an absence of notice and not because of any deliberate disregard of

the orders is the trial judge in circumstances where he is precluded from making any order on the validity of detention entitled

instead to make money and other orders with a view to, as far as possible, restoring the original status quo ante?

3. I should state at the outset that I would refuse the free standing motion brought to this court seeking that none of the issues be

dealt with by this court other than the question of contempt. I am quite satisfied that that would not be a correct approach as all

the issues are tied in with each other. There is nothing more I need say on this matter.

4. Before dealing with each of the three legal issues which I have identified, I want briefly to set out the material facts in each of the

four cases in respect of which the learned trial judge gave one composite judgment and in respect of which I am likewise now doing

the same.

The Adebayo case

5. A deportation order in respect of Mr. Adebayo, a Nigerian, as were all the other applicants, was made on the 6th March, 2004. It

was served on the following day i.e., 7th March, 2004. At the time of service this applicant was arrested and detained. He brought a

habeas corpus application which was refused on the 25th March, 2004. On the 6th April, 2004 the applicant’s solicitor who acts for

each of the applicants learned of his likely deportation that night and he, thereupon, filed an application for leave to bring judicial

review proceedings seeking a quashing of the deportation order. The return date assigned for that application was the 21st April,

2004. No interim injunction was applied for in the judicial review proceedings preventing the deportation but the reliefs to be sought

on the return date included an interlocutory injunction to that effect. On the same night i.e., 6th April, 2004 the said solicitor sent a

letter by fax to the Repatriation Unit at Burgh Quay informing the authorities that judicial review proceedings had been filed and

served with a return date of the 21st April, 2004 and stating in the letter the following:

“We trust therefore that no action will be taken in the interim to give effect to the challenged order and thereby deprive him

of access to the courts.”

6. On the findings of the learned High Court judge that fax and its equivalent in the other cases was probably received and read by

the unit but as far as the authorities and the gardaí were concerned, no undertaking was given not to deport and no interim

injunction had been granted. It was, therefore, not considered that there was any obligation to stop the deportation. When however

the solicitor received no reply he caused an application to be made that night to Gilligan J. seeking an Article 40 Inquiry and/or

conditional order of habeas corpus coupled with an interim injunction. This order was granted with the following day as the return

date and an interim injunction was also granted preventing the deportation before the hearing of the application the following day.

Notice of that order was also faxed to the same unit. However, it emerged from oral evidence heard in the court below that the unit

is unmanned between 12.00 midnight and 8.00 a.m. The learned High Court judge was satisfied and, in my opinion, was entitled to be

satisfied that the second fax was not received until after 8.00 a.m. the following day. The aeroplane used to deport the applicant had

taken off shortly after midnight in the early hours of the 7th April. The learned trial judge went on to find, as he was entitled to find,

that there was no deliberate disobedience to either the interim injunction or the conditional order of habeas corpus itself.

The Igwe case

7. The history of this case was similar as far as relevant facts are concerned as the Adebayo case except that in this instance the

deportation order was served on the 6th March, 2004 and then arrested and detained. The legality of his detention was challenged by

habeas corpus and that application was refused on the 22nd March, 2004. The procedural history and its sequence were similar and I

need not repeat it.

8. There were, however, some minor differences in the factual history. In the Adebayo case Mr. Adebayo claimed that his mobile

phone had been confiscated and that this was tantamount to a deliberate refusal of access to his solicitor. No such allegation was

made by Mr. Igwe. Certain other points, however, were made in his case that were not made in Mr. Adebayo’s. On route to

deportation, he was temporarily held in Harristown House which is at or near the airport. It was argued that this was not an

authorised place of detention as it was not listed in the Second Schedule to the Immigration Act, 1999 (Deportation) Regulations,

2002 (S.I. No. 103 of 2002) as a prescribed authorised place of detention. The learned High Court judge, quite rightly in my view,

rejected that argument on the basis that it could never have been intended that every place used for transit purposes would have to

be specified in the regulations. On behalf of Mr. Igwe it was also argued that by reason of similarity of treatment of several other

Nigerians in comparable circumstances it should be inferred that the gardaí were not exercising powers of detention properly under the

relevant Act but were effectively operating an automatic system. The learned High Court judge rightly rejected this argument also.

Where an aeroplane has been specially chartered to travel to Lagos for the purpose of deporting a large number of Nigerians it is

inconceivable that in a very substantial number of those cases there would not be genuine apprehension of deliberate avoidance on

the part of the gardaí and, therefore, on the basis of numbers alone it would not be proper to draw any adverse inference.

9. Before moving to the next set of applicants, I want to signpost in passing at this stage that both Mr. Adebayo and Mr. Igwe

brought their judicial review applications within the fourteen day time limit under the statute. I will advert later to the relevance (if

any) of this point.

The Jacob cases

10. These applicants are brother and sister to each other. Deportation orders in respect of them were made on the 5th September,

2003 and the making of the orders was notified to each by letter of the 20th November, 2003. None of these applicants was arrested

or detained when served with the deportation orders. As far as subsequent court proceedings are concerned the pattern was the

same as in the other two cases to which I have referred. The judicial review proceeding and the application for interim relief and

habeas corpus to Gilligan J. were made in the same manner and with the same consequences. There is, however, one difference. The

judicial review application was well outside the fourteen day time limit and, therefore, it cannot strictly speaking have been regarded

even as a valid application for leave unless and until the time was extended.

11. Although these applicants were not arrested following the notice of the deportation orders they were arrested and detained on

the night of the deportation. They alleged that they had thought they were only required to attend the gardaí and that it never

occurred to them that they were going to be deported that night and they expressed strong grievance that they were being treated

differently than certain other members of their family. This led to aggressive shouting which in turn understandably led to a belief on

the part of the gardaí that they would not freely comply with the deportation orders and, accordingly, an arrest was made at that

stage. I am merely giving a brief summary of the position. The judgment of Peart J. gives the full details.

The Ondukan case

12. In this case, the deportation order was made on the 17th January, 2003. There was no immediate arrest but as a consequence of

a failure to report to the gardaí this applicant was arrested and detained on the 8th January, 2004. He successfully obtained a habeas

corpus order on the 18th February, 2004 and he filed a judicial review application including a claim for interlocutory relief on the 24th

February, 2004. However, he had in fact obtained no further relief as of the 6th April, 2004, the date of the intended deportation. He

was given notice to attend the Bureau on that date and then given notice to be in attendance at Dublin Airport at a particular time

before the flight. He alleged that he was deprived of his mobile phone and, therefore, of a means of access to his solicitor. Otherwise

the procedural history was the same as in the other cases though it should be explained that the initial return date for the judicial

review proceedings which he had commenced in February, 2004 was the 21st April, 2004 the same date as applied to the much later

judicial review proceedings in the other cases. Otherwise the position is identical because although interlocutory injunctions were

sought in the February application at no stage was an interim injunction sought. Nor was any undertaking given by the State. It will,

of course, be noted from the dates that the judicial review application in so far as it sought to quash the deportation order was well

out of time and would have required an extension of time which had not been given as of all material time.

13. I turn now to the law and I will deal with each of the identified issues mentioned above in turn.

The contempt issue

14. In relation to the contempt issue, the learned High Court judge had this to say:

“There is no doubt that as a matter of pure fact the orders obtained by each applicant on the 6th April 2004 were not

complied with in the sense that (a) the bodies of the applicants were not produced before the court on the following morning

and against the terms of the orders the deportations were actually effected.

It is also beyond doubt that these orders are still extant, since an opportunity to bring an application to have them vacated on

the ground of mootness was not availed of by the respondent.

However it is also the evidence, which I accept as bona fide and correct, that those having charge of this operation were

never made aware of the making of the orders at 11.30 p.m., since the aircraft was already airborne by the time the

applicants’ solicitor managed to get through to any appropriate personnel at garda headquarters or Command and Control at

Dublin Airport. I am also satisfied that, as a matter of fact, the faxes were sent to GNIB following the making of the orders

were not seen until the following morning.”

14. Later on in his judgment, the judge found as follows:

“Firstly, and for the reasons which I have already given, I am not satisfied that there has been a deliberate disobedience of

the orders of this court made on the 6th April, 2004, and accordingly, I am not satisfied that the respondents are in

contempt, and I therefore refuse any relief on foot of the applicants’ Notices of Motion seeking the attachment and committal

of the Commissioner of An Garda Síochána.”

15. I believe that there is nothing which I can usefully add to those findings of the learned trial judge which were clearly correct. I am

deliberately avoiding any analysis of contempt law in general and case law in particular because the precise definitions of criminal and

civil contempt respectively and the role of mens rea in them and the role (if any) of vicarious liability have never been definitively

established in any modern Irish case law and I do not think that this is at all a suitable case in which to attempt to embark on such

an exercise. It is perfectly obvious that on the facts as found by the learned trial judge there was no contempt of court in this case.

The jurisdiction issue

16. As already mentioned, by the time the relevant authorities had any notice of the conditional order under Article 40 made by

Gilligan J. the applicants had not only landed in Lagos but were free from any detention. The applicants were, of course, accompanied

by a force of gardaí in the flight. Questions as to the precise status of the applicants while in the aeroplane or as to whether the

Commissioner of the gardaí or anyone acting on his behalf would have had authority in some circumstances to require the pilot to turn

around and go back to Ireland do not seem to me to arise. I agree with the view of the learned High Court judge that the habeas

corpus proceedings became moot once the detention ceased. I also agree with the learned trial judge that once the applicants are

outside the jurisdiction of the Irish courts and certainly if they are no longer under the control of persons amenable to the jurisdiction

of the Irish High Court, the Irish courts are bereft of any jurisdiction to make a determination as to the validity of the detention. In

this connection the observations (albeit obiter dicta) of Finlay C.J. in a judgment in this court in the case of In re D. [1987] I.R. 449

at 457 and with whose judgment Walsh J., Henchy J., Hederman J. and McCarthy J. agreed are apposite. The former Chief Justice said

the following:

“Though on my view of the case it does not arise for decision, I feel I should express my view that, on my understanding of

the provisions of Article 40, s. 4, sub-s. 2 of the Constitution, the High Court on the hearing of an application pursuant to that

sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance

with law. If it is, then the application must be refused. If it is not, the person must be discharged from the custody in which

he is. Such a procedure does not appear to me to admit of any supervision or monitoring of the interests of the person

concerned, even allowing for a condition of mental retardation or other want of capacity.”

17. Neither an order for release nor an order refusing release by Peart J. would have been appropriate here and, in my view, that is

the end of the matter as far as the habeas corpus proceedings were concerned. It is true that there have been exceptional

circumstances where a habeas corpus proceeding has been permitted to continue notwithstanding its apparent mootness but such

exceptional circumstances do not arise here.

The alternative reliefs issue

18. In the light of those findings in relation to contempt and habeas corpus the learned trial judge decided nevertheless that the

status quo ante ought to be restored and for that purpose he took the view that there was an inherent jurisdiction in the court to

make any suitable orders which would achieve that purpose. There was a combination of reasons why the learned trial judge adopted

this approach. First of all in relation to some but not all of the applicants he found that as a matter of probability their mobile phones

had been confiscated and he accepted that that would have prevented them contacting their solicitor. I think it can also be

reasonably inferred that he took the view that if proper systems had been in place notice would have reached the authorities in time

to prevent the deportations. Over and above these reasons however the learned High Court judge, having found that the relevant

authorities were on notice of the respective judicial review proceedings, considered that notwithstanding the absence of any

undertaking from the State not to deport pending the hearing of those proceedings and the absence of any interim injunction or

undertaking there was no entitlement to implement the deportation order once those proceedings were pending and had not been

determined. The formal substituted order which the learned trial judge made was that each applicant, should he still retain a wish to

return to this jurisdiction for the purpose of continuing to prosecute the judicial review proceedings in respect of the deportation

order, be facilitated in that regard as to the reasonable costs involved in so returning and that on so returning he be permitted to re-

enter pending a final determination of those proceedings.

19. In point of form, that order is included in the only order of Peart J. before this court which is the order of the 4th November, 2004

and in each case is headed “In the Matter of Article 40.4 of the Constitution and of the Habeas Corpus Act, 1782”. However, it must

be said that it was not entirely clear from a reading of the judgment in the High Court as to how this novel and imaginative order was

to be slotted in in the proceedings before the court. At one stage in the judgment there were indications that it was intended to be

made in the attachment and committal motion. In another part of the judgment there seemed to be a suggestion that not only was

there an inherent jurisdiction in the court to make this order but that no particular motion or proceeding was required to be before the

court to enable it to do so. The judge may have meant by that that there did not have to be an express application for it included in

the proceeding before him. Finally, there were indications that the learned trial judge was making the order effectively in the habeas

corpus proceeding. That was obviously the view of the registrar who drew up the order. Nothing turns on any of this, in my view,

because I am satisfied that this order requiring the State to facilitate the return of the applicant to Ireland for the purpose of

pursuing the judicial review proceedings could not as a matter of law be made in either the contempt proceeding or in the habeas

corpus proceeding. That does not necessarily mean that such an order could never be made and I will shortly explain what I mean by

that. But as matters stand, that order in each case must, in my opinion, and for the reasons which I have indicated be set aside and

the appeal allowed.

20. Although on the view which I have taken it does not strictly arise, I intend to give at least tentative consideration to the

question of whether the institution of a judicial review proceeding challenging the validity of a deportation order has the automatic

effect of staying the implementation of the order pending the outcome of those proceedings. This is a most important question and as

there was considerable argument on it before this court, I would like to address it. There are a number of different aspects to the

problem and I would list them as follows:

1. Given that there is a statutory fourteen day period within which a deportee may apply for leave to bring judicial review

proceedings challenging the validity of the deportation order is he entitled to remain in Ireland for the fourteen day period at

least?

2. If he is so entitled, is he further entitled in the event of his seeking such leave within the fourteen day period to remain in

Ireland pending the outcome of the proceedings including the actual judicial review itself if leave is given?

3. Alternatively, is he at least entitled to remain in Ireland until the question of leave is determined and then to continue living

in Ireland pending the outcome of the proceeding if but only if the judge granting the leave so directs?

4. What is the position in relation to any of the above alternatives (if they apply at all) where the fourteen day period expires

without any application being brought and is then followed by an application to extend the time?

5. In such a case would an interim injunction have to be obtained to render an actual deportation pending the hearing of the

application to extend the time unlawful?

21. First of all, I am of opinion that the learned High Court judge is not correct in the view he took that even in the case of an

application for leave which required an extension of time, the State, if on notice of such application, would not be entitled to

implement the deportation order even in the absence of an interim injunction. In my opinion, that would lead to an unworkable

interpretation of the Act. In this particular case, the applicants were all being deported to Nigeria. Nigeria is a particularly good

example for illustrating the principle in that there are no scheduled flights between Ireland and Nigeria. On this occasion and, it seems

to be understood on all occasions, when a number of Nigerians are being deported a large jet aircraft is chartered for the purpose. If

the view of the learned trial judge is correct, every one of the intended deportees could contact their solicitors and procure that an

application for leave to obtain judicial review would be lodged even if it was well outside the fourteen day period and none of them

could then be deported. That, in my opinion, would lead to an absurdity. The Act has to be given a reasonable workable interpretation

which respects the rights of the proposed deportees on the one hand but also renders deportations provided for under the Act to be

possible and achievable. I would, therefore, hold that if the fourteen day period has expired and, therefore, time has to be extended,

the State is entitled to go ahead with the deportation notwithstanding an application for leave to bring judicial review proceedings

with the accompanying application for extension of time unless an interim injunction has been obtained from the court preventing the

deportation.

22. I take a different view, however, (tentatively as I have indicated) in relation to proposed deportees who bring the application for

leave within the fourteen day period. This is an express statutory entitlement and I find it inconceivable that the Oireachtas ever

intended that a person having exercised his statutory entitlement to bring the application within the fourteen days may, nevertheless,

be deported in the meantime against his will unless he obtains an interim injunction, a procedure not mentioned or in any way provided

for under the Act itself, it being historically a chancery remedy though ultimately incorporated in the Supreme Court of Judicature Act.

It is quite true that in theory and, indeed, in practice the judicial review application can proceed normally in the applicant’s absence.

For that reason, I do not consider that any constitutional issue as to access to the courts arises. The applicant in such a case has

not been deprived of his constitutional right of access to the courts. My view is based on the interpretation of the Act itself. This Act

is concerned with individuals being forced against their will to leave the country. If there is a time limit provided by the Act to enable

them to challenge such an event, it does not seem to be a sensible interpretation of the Act to suggest that, notwithstanding the

exercise of the statutory entitlement to apply for leave for judicial review requiring no extension of time, they may nevertheless be

spirited out of the country. On any reasonable and purposive interpretation of the Act that cannot be so. It is not, therefore, a

question of an implied statutory stay. It is simply a matter of substantive interpretation of the Act though, of course, the end result

is the same as if a stay was expressly provided for.

23. It is no answer to the view which I have expressed that a deportee is entitled to apply for an interim injunction and that if he

obtains it, that will prevent the deportation. First of all, he is entitled to have a full fourteen days within which to consider and take

advice as to whether he will in fact apply for judicial review. Yet on the State’s argument, if, say, on day three of that period the

deportation was about to be implemented the applicant would have to hurry into court and obtain an interim injunction. That does not

seem to be consistent with his fourteen day entitlement. Secondly, the person to be deported may never at any material time have

had the services of a solicitor and, indeed, he may deliberately not wish to have one. I ask the rhetorical question, how is an

unrepresented Nigerian to know in the ordinary way that there is such a remedy as an interim injunction notwithstanding that it is

nowhere mentioned in the only Act which he could reasonably be expected to consult and furthermore that he would be required to

obtain it if he wanted to remain in the country notwithstanding that the fourteen day period had not run out. In arriving at the

correct interpretation of the Act, it is irrelevant that in any given incidence, such as these four cases, the applicants do in fact have

solicitors. It is a necessary corollary to what I have said, that if in fact an application is brought lawfully within the fourteen day

period the right not to be deported must continue at least until the matter first comes before a court. At that stage I would hold that

an interlocutory injunction would be required to preserve the right to remain in the country. In that respect I differ from the view of

the learned High Court judge. This requirement, in my opinion, arises from the wording of the relevant section itself.

24. Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 expressly provides that a person shall not question the validity of a

deportation order under section 3(1) of the Immigration Act, 1999 “otherwise than by way of an application for judicial review under

O. 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986)”. Subsection (2) goes on to provide that the application for leave to

apply for judicial review must be made within the fourteen day period commencing on the date on which the person was notified of

the making of the deportation order “unless the High Court considers that there is good and sufficient reason for extending the period

within which the application shall be made.” It is clear, therefore, that subject to the modifications contained in the Act itself the

provisions of O. 84 of the Rules of The Superior Courts shall apply. O. 84, r. 20(7) provides as follows:

“Where leave to apply for judicial review is granted then-

(a) If the relief sought is an order of prohibition or certiorari and the court so directs, the grant shall operate as a stay

of the proceedings to which the application relates until the determination of the application or unless the court

otherwise orders;

(b) If any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be

granted in an action begun by plenary summons.”

25. Having regard to the incorporation of the whole of Order 84 expressly provided for by the said Act of 2000, it would seem to me

that implementation of the Deportation Order following on leave being granted for judicial review would only be stopped if the court

makes an order to that effect.

26. In summary, therefore, I take the view that no deportation may be implemented during the currency of the fourteen day period

and that if in fact an application for leave is brought within that period no deportation order may be implemented until the court

determines the application for leave and only then if the court does not order otherwise upon the granting of leave. Having regard to

the very nature of this legislation and its intent it would seem likely that a court properly exercising its discretion would normally grant

the stay or the injunction as the case might be if leave was being given.

27. The person who has not applied within the fourteen days has prima facie no right to remain in the State and the State is

perfectly entitled to make appropriate arrangements for the implementation of his deportation. Nothing in the Act would lead an

applicant to believe that if the time has not in fact been extended he cannot be deported. The court may, of course, grant him an

interim injunction. It is unfortunate, in my view, that the right to apply for such interim injunction in such a situation is not expressly

provided for in the Act so that persons unacquainted with Irish law and particularly unrepresented deportees would be aware of what

they had to do if they had any chance of stopping the deportation. I have already indicated that it is not satisfactory that a

chancery remedy such as an interim injunction unprovided for in the Act should have to be availed of. But there is no alternative in a

case where an extension of time has to be obtained. Otherwise for the reasons which I have given the Act would be potentially

unworkable.

28. I now want to make some observations which must necessarily be obiter dicta on the unusual form of relief granted by the

learned High Court judge. Earlier in this judgment, I have given reasons why, in my opinion, it was not open to him to give such relief

in the actual proceedings which were before him. Again, as I mentioned, this does not rule out such relief being granted in other

proceedings. Counsel for the Commissioner and the Minister, Mr. Patrick McCarthy, S.C. did not dispute that a remedy of the kind

given by the learned High Court judge might be appropriate in cases where there had been a deliberate flouting of a court order by

the State authorities. Mr. McCarthy, however, argued that where there was no longer actual custody of the applicants and where

there was if anything simply a “collateral purpose” i.e. to be allowed to return to pursue the judicial review proceedings the court

should not intervene by way of restoring the status quo ante in the absence of mala fides on the part of the authorities such as was

found in the case of The State (Quinn) v. Ryan [1965] I.R. 70 and the Trimbole case. With reference to Mr. Ondukan’s case, the

learned High Court judge in his judgment referring to the removal of the mobile telephone said the following:

“If I am correct about this, it seems to me that the case comes within the principles of the State (Quinn) v. Ryan… even

though that case might concern a considerably more extreme instance of a deliberate effort to deprive a person in custody of

his constitutional rights. In my view any deliberate removal of the mobile phones, when combined with a denial of a request be

permitted to communicate with a legal adviser, must amount to a denial of a constitutional right.”

29. I am very doubtful that the Quinn case has relevance. It was held in that case by this court that it is contempt of court for police

officers to arrange to remove a prisoner out of the jurisdiction of the Irish courts on an English warrant with such speed that he has

no opportunity to apply to the courts to question the validity of such warrant or to apply to the court for an order of habeas corpus.

In that case however there was evidence of a deliberate conspiracy by the gardaí to ensure that the prosecutor would be removed

out of the jurisdiction without a court proceeding. In brief it was a mala fides activity whereas in this case the garda behaviour would

appear to have been bona fide. If a remedy of the kind which was granted in this case by Peart J. is to be granted in an appropriate

case, it should be granted in the judicial review proceedings challenging the deportation order and not in contempt or habeas corpus

proceedings. The judicial review proceeding challenging the validity of the deportation order is the appropriate vehicle for seeking

such remedies. It would be a matter for the judge dealing with the judicial review application to decide whether, as a matter of

justice, such an order should be made. It is a drastic form of order. Where there has been no mala fides, one of the factors which a

court would in my opinion be entitled to take into account would be the likelihood of leave being granted and even to some extent the

likelihood of whether the judicial review would itself be granted. I respectfully disagree with the learned High Court judge that these

factors may not be taken into account.

30. As I have already indicated, the right of access to the courts in these cases has not been interfered with. On the other hand in

the case of applications made in time there would be an arguable entitlement not to be deported pending an order by the court under

O. 84 of the Rules of the Superior Courts. That factor would have to be taken into account balanced against other factors. In my

opinion, an order compelling the State to pay for the return of a deportee would be a remedy to be sparingly granted. None of this

however arises in this particular appeal, even if they could arise in the judicial review proceedings which have still to be heard.

31. I would refuse the independent motion brought before this court. I would allow the appeal of the Commissioner and the Minister

and set aside that part of the order of the High Court as ordered that the respective applicants be facilitated in terms of reasonable

costs in returning to this jurisdiction and permitting such return.

32. The notice to vary/cross-appeal raised five issues.

1. A challenge to the finding that there was no deliberate violation of the order of the 6th April.

2. A challenge to the finding of mootness in respect of the respective applicants’ arrest and detention.

3. A challenge to an alleged finding that the applicant was not at any time in unlawful custody prior to his being disembarked at

Lagos.

4. A challenge to the finding that there was no jurisdiction in habeas corpus to make an order where the person in question was

outside the territory of the State and no longer in the immediate custody of the State.

5. A challenge to the finding that there was lawful authority to detain an applicant at Harristown House.

33. Throughout the judgment I have dealt in one way or another with all of these matters and it is clear from the views which I have

expressed that I would dismiss the cross-appeal.