Supreme Court allows appeal on detention period calculation, rejecting literal interpretation that requires a break period for renewed detention.

THE SUPREME COURT

APPEAL NUMBER 159/2012

Fennelly J.

Clarke J.

MacMenamin J.

IN THE MATTER OF AN ENQUIRY PURUSANT 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 MacMenamin delivered the 10th day of May 2012.

1. I agree with the decision in this matter as expressed in the judgments of Fennelly J. and Clarke J. which I have read in draft form. I

also agree that the learned High Court judge acted entirely correctly in applying the legal authorities cited to him, and now referred to

in Fennelly J.’s judgment. The doctrine of precedent applies in the area of immigration law, as in all other aspects of the law. But I

should say now that I find the logic of the two judgments just delivered to be coercive.

2. However, while expressing these views, one cannot be blind to the consequences of the interpretation. The effect of Section 5(6)

(a) of the Act of 1999, as now determined, is that the applicant in this case has benefited as a result of his own wrongdoing. His own

violent misconduct prevented his orderly deportation from this State to another State.

3. Counsel for the appellant urged that the consequence of that violent conduct should be that the appellant should be charged with

an offence in this State as provided for elsewhere under the Act. If found guilty, the consequence of such a conviction might be a

term of imprisonment in this State. If charged, the individual in question may be entitled to bail. Whether on bail, in custody, or at

liberty, the irony is that any such outcome would be one which surely negates the intention behind the legislation. That intention is

that the individual in question be deported from this State. Can this have been the intention of the Oireachtas?

4. These considerations, and the avoidance of such an anomaly, were the basis for the interpretation of the Section in question in

Chun Qiang Yu v. Minister for Justice Unreported MacMenamin J., dated 31st January 2006, wherein I followed the decision in

Gdemibade v. Minister for Justice and Others Finnegan J., 30th November 2005 (see R.O. v. The Minister for Justice The High Court

Smyth J. 11th July 2002). A court is entitled to have regard to an anomalous outcome in the interpretation of a statutory provision

but as Clarke J. points out an anomaly is not the only criterion in interpreting legislation. The task of a court is to interpret the law,

not to legislate.

5. This court is not bound by the High Court jurisprudence, and may look at the question anew. The arguments advanced in this

appeal, based on a literal interpretation of the Act, laid a particular emphasis on literal interpretation of the words “period or periods”

and “in aggregate” in Section 5(6) of the Act of 1999. In effect, the case was made that for the time for detention to commence

again there must be an entirely fresh ground, a “break period” to give rise to a renewed basis for detention, as opposed to new facts

or events arising during the eight week period of that detention. In Fennelly J.’s judgment there are important passages quoted from

the judgment in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. Those passages, now brought to the attention of this court,

add force to the interpretation of the Section which now must be imparted to the Section. I now find the applicant’s argument is

persuasive, as now supported by that authority, and the consequence must be accepted. That is the rule of law.

6. But there remain unresolved questions. On the literal interpretation of the Section, if an individual so conducts himself towards the

end of a detention period as to prevent his deportation, what, precisely, are the State authorities to do? Is he simply to be released?

Moreover, the contingencies in these situations may not always be clear-cut, or allow for easy categorisation. The Act does not

answer these questions. Nonetheless, I too, am now persuaded by the appellant’s argument. There is the fundamental issue of the

right to liberty at stake, where, whatever the applicant’s merits, he is entitled to rely on a literal interpretation of the statute.

7. As is pointed out by my colleagues, remediation of the situation must be a matter for the legislature. Clearly a position where a

deportation can be defeated by unlawful actions on the part of an individual about to be deported, is one which requires legislative

intervention; but in this it might be observed that a decision of this kind involves a balancing of the rights of the state and that of

the individual in question having a necessary regard to all the circumstances.