Supreme Court held aggregate detention limit applies despite new breaches, ordering appellant's release.

THE SUPREME COURT

Record No: 159/2012

Fennelly J.

Clarke J.

MacMenamin J.

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND

BETWEEN

NAZIH KADRI

APPLICANT / APPELLANT

AND

THE GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

JUDGMENT of Mr. Justice Fennelly delivered the 10th day of May 2012.

1. The Court on Friday 27th April 2012 ordered the release of the appellant from custody in accordance with Article 40, section 4. 2°

of the Constitution. In this judgment I give the reasons for that decision.

2. On 11th April, the High Court (Birmingham J) directed an enquiry into the lawfulness of the detention of the appellant. The

respondent certified that the appellant was being detained in custody on foot of a notification of detention dated 29th March 2012

made by Detective Garda Ronan O’Halloran, a member of the Garda National Immigration Bureau (GNIB) pursuant to s. 5(1) of the

Immigration Act, 1999. That Notification followed on an earlier such notification of 8th February 2012.

3. On 13th April Birmingham J conducted an enquiry in accordance with Article 40. The appellant’s complaint was that the total period

of his detention, when counted from 8th February 2012, by that date exceeded the aggregate period of 8 weeks permitted by s. 5(6)

(a) of the Act of 1999.

4. The learned judge referred to a number of earlier High Court decisions on the interpretation and application of that section, which

he considered to be binding on him. He also referred to one decision of this Court. He held that the appellant’s detention was lawful

because he had committed new or fresh breaches of the deportation order which was in force against him showing that he intended

to avoid removal from the State. This gave rise to a power to make a new arrest and to issue a new detention notification.

5. The appellant appeals against the decision of the High Court.

6. The essential facts are not in dispute. The appellant is an Algerian national. He claimed asylum in the State on 25th October 2006.

The Minister for Justice Equality and Law Reform, following his unsuccessful invocation of the asylum process, refused to treat him as

a refugee. On 20th August 2009, the Minister made a Deportation Order in respect of the appellant. That Deportation Order required

him “to leave the State within the period ending on the date specified in the notice served on or given to [him] under subsection (3)

(b)(ii) of the said section 3 [of the Act of 1999], pursuant to subsection (9)(a) of the said section 3 and to remain out of the State.”

7. On 21st September 2009, a letter was sent to the appellant from the Repatriation Unit of the Irish Naturalisation and Immigration

Service, a division of the Department of Justice Equality and Law Reform. That letter constitutes the notice issued to the appellant

under Section 3(3)(b)(ii) of the 1999 Act. That notice conveyed to the appellant a number of requirements which he has admittedly

breached but which are not relevant to the central issue on the appeal. They include notice that he was required to present himself

at the office of the GNIB on 8th October 2009, to produce certain travel documents, to co-operate in obtaining documents required

for his removal from the State and to reside at a specified address. The key requirement of the notice was as follows:

“The Deportation Order requires you to leave the State and to remain outside the State. You are obliged to leave the State by 8th

October 2009.”

8. In any event, it is common case that the appellant did not and does not intend to comply with the requirement that he leave the

State.

9. It was not until 8th February 2012 that the Garda authorities took active steps to enforce the Deportation Order. Very probably

this was because the appellant was evading deportation. In particular, he did not reside at the address in Waterford where he was

required to reside. Detective Garda O’Halloran on 8th February 2012 went to an address in Drumcondra and met the appellant who

could offer no explanation for his failure to present himself at the offices of the GNIB on 8th October 2009.

10. Detective Garda O’Halloran arrested the appellant and conveyed him to Cloverhill Prison, which is a prescribed place of detention.

He completed a Notice of Detention addressed to the Governor of Cloverhill Prison in accordance with s. 5(1) of the Act of 1999. He

thereby directed that “pending the making of arrangements for [the appellant’s] removal from the State” he be detained in Cloverhill

for the purposes of s. 5(1) of the Act. The printed form provides five boxes to be ticked showing the basis in law for the detention of

the person. These correspond to the grounds for arrest and detention provided for in s. 5(1) of the Act. The Notification of Detention

specified by way of ticked boxes that the appellant:

• Has failed to comply with a provision of the [deportation] order;

• Has failed to comply with a requirement in a notice under Section 3(3)(b)(ii).

• Intends to avoid removal from the State.

11. On the 14th of February 2012, the appellant instituted Judicial Review proceedings seeking declaratory relief and injunctions and

claiming that he could not be deported pending determination of an application for revocation of the Deportation Order. On 20th

February 2012, the appellant applied unsuccessfully to the High Court (Cooke J) for an injunction preventing his removal from the

State.

12. In the ensuing period the Garda authorities conducted discussions with the Algerian Consulate in London with a view to arranging

the appellant’s deportation to Algeria. Arrangements were put in place and the necessary travel document was issued for his

repatriation to that country on 29th March via London Gatwick Airport.

13. On 29th March Detective Garda O’Halloran and two other members of the GNIB went to Cloverhill Prison for the purpose of

transporting him to Dublin Airport as the first stage of his return to Algeria. It is unnecessary to recount in great detail the graphic

account given by Detective Garda O’Halloran of the appellant’s behaviour. Suffice it to say that he physically resisted in the most

extreme way the efforts of the Gardaí. He resisted all Garda attempts to move him; he shouted that he would be killed and asked the

Gardaí to shoot him; he threatened to kill himself; he forced himself to vomit on the Gardaí in the garda car; he attempted to injure

himself by butting his head against a car window and then on the ground in the Airport.

14. Detective Garda O’Halloran concluded that it would be impossible to deport the appellant. It was obvious that he would not travel

unescorted from Gatwick to Algiers as had been envisaged. He believed that, if the appellant was left unsupervised in the airport for a

moment he would inflict injury on himself.

15. Detective Garda O’Halloran arrested the appellant at Dublin Airport and conveyed him to Wheatfield Prison which is also a

prescribed place of detention. He completed and signed a new Notice of Detention in accordance with s. 5(1) of the Act of 1999, this

time addressed to the Governor of Wheatfield Prison. Detective Garda O’Halloran says that he had arrested the appellant because he

had refused to leave the State and that he was in breach both of the Deportation Order and of the terms of the letter of 21st

September 2011 in that he refused to leave the State or to comply with the directions of the GNIB. He believes that the appellant will

take steps to avoid any attempt to deport him from the State. The same boxes were ticked as in the earlier Notification. Thus,

exactly the same grounds justifying detention were cited as in the first Notification.

16. The appellant remained in custody in Wheatfield prison pursuant to the Notification of Detention dated 29th March 2012 until the

date of the hearing of the appeal.

17. Section 5 (1) of the Immigration Act, 1999 as substituted by section 10 (b) of the Illegal Immigrants (Trafficking) Act, 2000

provides that:

“Where an immigration officer or a member of the Garda Síochána with reasonable cause suspects that a person against whom a

deportation order is in force

(a) has failed to comply with any provision of the order or with a requirement in a notice under section 3 (3) (b) (ii),

(b) intends to leave the State and enter another State without lawful authority,

(c) has destroyed his or her identity documents or is in possession of forged identity documents, or

(d) intends to avoid removal from the State,

he or she may arrest him or her without warrant and detain him or her in a prescribed place.”

18. The judgment of this Court, delivered by Keane C.J., on the reference under Article 26 of the Constitution, in Re Illegal Immigrants

(Trafficking) Bill 1999 [2000] 2 IR 360, explained the justification and the purpose of the provision is as follows at page 407:“Where

there is a suspicion with reasonable cause that a person concerned is not going to permit the deportation order to be carried out in a

proper manner detention to secure such proper deportation is to be permitted.” In the course of its consideration of the provision, the

Court stated at page 411 of the judgment that “it would be an abuse of the power to detain if it was quite clear that deportation

could not be carried out within the eight weeks.” It remarked at page 412 that “eight weeks in aggregate is a relatively narrow limit…”

19. The appellant’s complaint is that his detention was unlawful once eight weeks had expired following 8th February 2012, the date

of commencement of the first detention notice. Section 5(6) (a) of the Act of 1999 provides that “a person shall not be detained

under this section for a period or periods exceeding 8 weeks in aggregate.”

20. The appellant makes a subsidiary or alternative point to the effect that the Notification of Detention is defective because it does

not specify the date of expiry of the eight-week period. I can say at once that this latter point is without merit. The eight week

period is a matter of general law. It is not a ground of detention which needs to be specified. Denham C.J., in Ejerenwa v Governor of

Cloverhill Prison and others [2011] IESC 41, dealt with a more or less identical point, arising on the interpretation of s.5(2) of the

Immigration Act, 2003, as follows:

“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.”

21. There has been a number of High Court decisions, notably Gmemibade v Minister for Justice Equality and Law Reform (High Court,

unreported 30th November 2005) concerning the eight-week period. Their effect is that, as stated by Finnegan J in Gmemibade, “a

separate event can intervene and give rise to the re-exercise or a new exercise of the power of arrest and detention…” (see also

Chun Qiang Yu v Minister for Justice Equality and Law Reform (High Court unreported, 31st January 2006, per MacMenamin J.)

22. Okorafor v Governor of Cloverhill Prison and others [2003] WJHC 10479 is the only one of these cases to have reached this Court.

In that case, the applicant was actually deported to Nigeria in March 2002 but re-entered the State in July 2003 in breach of the

Deportation Order which was still in force. He was then detained again pursuant to s. 5 of the Act. Herbert J responded to the

applicant’s argument that his new detention breached the eight-week period laid down by s. 5(6) as follows:

“In my judgment the purpose of Section 5(6)(a) of the Immigration Act, 1999, is to ensure that persons are not kept in custody

indefinitely following upon the making of a Detention Order. The provision as to aggregation is necessary to prevent multiple

detentions for periods of less than eight weeks. Once the person detained has been deported from the State the operation of Section

5(6)(a) is exhausted. However, should a person deported re-enter the State in breach of the provisions of the Deportation Order, the

limitation provisions of Section 5(6)(a) of the Immigration Act, 1996 revive, but only as regards any subsequent period or periods of

detention.”

23. The applicant appealed to this Court. His appeal was dismissed for reasons stated in the ex tempore judgment of McGuinness J in

Okorafor v Governor of Cloverhill Prison and others (Supreme Court, unreported 10th October 2003). She held that the applicant had

“newly breached the deportation order by returning to this country during a period when….the deportation order is still in force so this

is a new breach which would give rise to a new arrest under section 5.1 and therefore a new detention.”

24. Okorafor is distinct from the other cases. There was an interval of more than a year between the first and the second periods of

detention. The act of returning to the State was a distinct and different type of breach: that of re-entering the State. Herbert J

considered that the first detention order had by then been exhausted. I should say, at this point, that I fully agree with the

observations of Clarke J regarding the binding effect of all these decisions so far as Birmingham J was concerned.

25. In the present case, the eight-week period commencing on 8th February 2012 had not expired on 29th March, when the appellant

was taken from Cloverhill Prison to be deported, fifty days later. He was no longer detained in Cloverhill from that date. However, he

was newly detained from the same date at Wheatfield. There was no break in the detention. If the eight-week period is counted from

8th February, it had certainly expired by the date of the application pursuant to Article 40 of the Constitution in the High Court before

Birmingham J on 11th April. Section 5(6) says that a “person shall not be detained under this section for a period or periods exceeding

8 weeks in aggregate.”

26. Not only does the subsection prohibit detention for any single period of more than eight weeks, it also prohibits, as Herbert J put

it in Okorafor,” multiple detentions for periods of less than eight weeks,” where the total period exceeds eight weeks. The latter

aspect is crucial and, to my mind, it puts the matter beyond reasonable dispute. Let us assume that the provision simply read that a:

“person shall not be detained under this section for a period exceeding 8 weeks.” In that event, a plausible argument could be

advanced to the effect that each period of arrest and detention pursuant to s. 5(1) should be measured separately so that only in

the event of a single period of detention exceeding eight weeks would the section be infringed. That argument cannot prevail against

the inescapable combined effect of the two phrases: “period or periods”; and “in the aggregate.”

27. Apart from relying on the proposition that there can be a fresh period of detention, based on new facts in accordance with the

existing body of High Court case law, the respondent argued for a practical or purposive approach to the interpretation of the

subsection.

28. There is no doubt that the egregious behaviour of the appellant in resisting lawful steps to give effect to his deportation

demonstrates the often appalling difficulties facing officers of the GNIB in such cases. Similar circumstances presented themselves to

the High Court in a number of cases, giving rise to a suggestion that the Court should lean against a construction of the subsection

which did not permit a new detention order and a consequent new eight-week period based on a new act of resistance to

deportation. MacMenamin J comments on these matters in the judgment he is about to deliver.

29. Before commenting finally on these propositions, I think it is necessary to note that the two successive detention orders affecting

the appellant were expressed in identical terms. All amounted to the single ground that the appellant failed to comply with his

obligation to leave the State and intended to avoid removal from the State. Nothing in the second Notification of Detention suggested

that there was a new ground for the detention.

30. In the final analysis, it is undoubtedly that case that illegal immigrants frequently evade and resist deportation and, as the facts

of this case demonstrate, they may very effectively prevent officers who are acting properly and humanely from carrying out their

duty and thereby frustrate their deportation.

31. However, there is nothing in subsection 6 to permit a Court to extend or prolong the eight week period on the grounds of new

acts of resistance. The eight-week aggregate limit is expressed in unqualified terms. The Court cannot adopt a flexible or purposive

interpretation of a provision designed to protect personal liberty, all the more so when such an interpretation would do violence to the

clear language of the Oireachtas. I agree with the judgment about to be delivered by Clarke J insofar as it discusses s. 5 of the

Interpretation Act, 2005. It is clear that the appellant was not lawfully detained on 11th April 2012, which was more than eight weeks

from 8th February 2012. The Court therefore directed his release.

32. A solution to the practical problems arising from this judgment, more fully discussed by MacMenamin J, can only be legislative. It

cannot be achieved by judicial contravention of the clear statutory mandate.