Title: K -v- Minister for Justice, Equality and Law Reform. HIGH COURT:Judgment was given by Mr Justice Peter Charleton on February 20th, 2008.
JUDGMENT
An immigration officer was entitled to detain an asylum seeker, who was then released subject to conditions. However, as she had then been living since in the State for more than three months, she cannot now be removed without a formal deportation procedure under the 1999 Immigration Act.
BACKGROUND
The applicant was a Nigerian national who came to Ireland in September 2000, claiming asylum. The grounds for her claim were that people had burst through her door in Lagos on September 1st, seeking to kill her husband, who was taken away. She fled to Ireland, claiming on her arrival to have no passport.
On October 10th she gave birth to a son, who became an Irish citizen. On November 8th she withdrew her claim for asylum, and instead sought leave to remain in Ireland as the mother of an Irish citizen.
She submitted a passport with her application, which Mr Justice Charleton said he would call Passport 1.
On August 13th, 2006 an immigration officer at Holyhead met the applicant as she was preparing to embark for Ireland.
She produced another passport, which Mr Justice Charleton said he would call Passport 2, supposedly valid from May 2006 to May 2011.
It contained a number of visas, including one for the UK. Another passport, "Passport 3" was also produced, valid from July 2002 to July 2007, containing a visa for Ireland.
A fourth, expired passport, overlapping with Passport 1, was found in her bag, with visas for the Schengen countries, the UK and the US.
The immigration officer suspected the applicant of having used deception to obtain the visas for the UK and she was served with illegal entry papers. She was returned to Ireland where the immigration officers had been alerted, she was refused permission to land in the State, and she was detained.
She told the immigration officer that she was visiting Ireland to see her son, who was with a friend, and that she spent most of her time in Lagos, where her husband ran a hotel. An examination of all the documents in her possession showed that she had spent 4½ out of the previous 5¼ years, in periods ranging in length from a month to a year, in Nigeria.
A week later, on August 21st, the case came before the High Court as a habeas corpus application that was not proceeded with.
The applicant was released subject to a number of conditions, including that she reside at a particular address and sign on daily at the local Garda station, surrender all passports and turn up to all proceedings.
In April 2007 she took judicial review proceedings to quash the order that she was refused leave to land in Ireland, from which her initial detention flowed.
The court also had to decide if the issue of a habeas corpus application still arose. The question also arose as to what had to happen now, as under the 2003 Immigration Act a person detained because he or she was unlawfully in the state had to be removed within three months.
DECISION
After reviewing the law on habeas corpus, Mr Justice Charleton said: "Forms of detention pursuant on a conviction are surrounded with safeguards centred on a review of that decision through appeal. Any person who is detained, on the other hand, pursuant to the decision of an administrative official, has no such comfort.
"The result may be that they are removed from the State whilst in such detention or that they may be required to await the next administrative step in processing them whilst in detention."
He said there was a solemn duty on a judge who commenced a habeas corpus inquiry to conclude the matter by ordering the person's release if they were not lawfully detained.
The fact of the matter was that 18 months had passed since the applicant had originally been detained.
This passage of time had an impact on whether she could now be lawfully deported on the basis of the initial refusal of permission to land and the subsequent brief detention.
The fact was the applicant had been unlawfully in the State for 18 months on terms agreed with the respondent.
"I am not entitled to somehow stretch a time limit of three months set out in a statute into 18 months and any agreement as to release between the applicant and the respondent does not allow reality to be suspended so that I now treat her as having been in custody during that time," Mr Justice Charleton said.
"If the respondents are contemplating deporting the applicant they will only seek to do so, I am satisfied, in accordance with law."
He said the case illustrated that habeas corpus applications should not be diverted through conditional releases and instead all parties should comply with Article 40.4.2 of the Constitution.
Having regard to the applicant's travel history, it was reasonable for the immigration officer to act as he did.
However, Section 5 (1) of the Immigration Act of 2003 did not allow her to be removed from the State without a formal deportation procedure under Section 3 of the Immigration Act of 1999, if that was the course the respondent wished to pursue.
Solicitors: Jammes Watters & Co, Arran Quay, Dublin (for the applicant) and Chief State Solicitor (for the respondent)