Court says it had to free man set for deportation

THE SUPREME Court has said it was required by law to direct the release of an Algerian man who had so violently resisted deportation gardaí concluded he could not be safely deported and returned him to jail.

The case of the man highlighted a problem with the Immigration Act that could only be addressed by legislation, all three judges agreed. *

The man, the judges believed, should not be entitled to benefit from his unlawful conduct in physically resisting deportation in “the most extreme way”, including resisting all attempts by gardaí to move him, shouting he would be killed and threatening to kill himself, forcing himself to vomit on gardaí, and butting his head against a car window and on the ground in Dublin Airport.

The man’s “egregious” behaviour demonstrated the often appalling difficulties facing Garda immigration officers, Mr Justice Nial Fennelly said.

However, the law was clear and the man had to be freed as he had been detained from February 8th last for an aggregate period of more than eight weeks, in breach of section 5.6 of the Immigration Act, the court found.

The court could not adopt a purposive interpretation of a provision designed to protect personal liberty, Mr Justice Fennelly said.

Mr Justice Frank Clarke agreed the man had to be released and said the precise type of measures that could, or should, have been put in place to deal with the sort of problems that arose in this case was “not a given”.

Such measures required legislation and could not be introduced by the court via “a strained interpretation” of the law, he said.

Agreeing, Mr Justice John MacMenamin said the effect of section 5.6, as determined by the court, was the man had benefited “as a result of his own wrongdoing”.

The judges made the comments in separate judgments yesterday outlining their reasons for freeing the man on April 27th last after finding his detention was unlawful.

They disagreed with a High Court decision of April 13th that the man's detention was lawful because he had committed fresh breaches of a deportation order, giving rise to a power to make a new arrest of him and to issue a new detention notification.

In his judgment, Mr Justice Fennelly noted the man came here in October 2006 and claimed asylum, which was refused.

In August 2009, the Minister for Justice made an order for his deportation and the man was later notified he had to leave the State by October 8th, 2009.

He failed to do so and “very probably” took steps after that to evade deportation, including not residing at an address in Waterford where he was required to reside, the judge said.

On February 8th, 2012, gardaí arrested him in Drumcondra, Dublin, and brought him to Cloverhill Prison.

On February 20th, 2012, the High Court refused to grant the man an order restraining deportation.

Arrangements were made for deportation on March 29th, 2012. After violent behaviour at Dublin Airport that day, gardaí concluded it would be impossible to deport him and that he could not travel unescorted from Gatwick to Algiers as had been arranged.

He was taken to Wheatfield Prison, where he remained until freed on April 27th last.

The Supreme Court ruled his detention was unlawful once eight weeks had expired from when he was detained in Cloverhill on February 8th.

Section 5.6 clearly provided that a person shall not be detained under this section for a period or periods exceeding eight weeks in aggregate, it held.

* This article was amended on May 28th, 2020