Ireland - Tareeq Omar v Governor of Cloverhill Prison [2013 No. 1968 SS]

Facts:

The applicant and his family were subject to detention and arrest on foot of a deportation order issued by the Minister of Justice and Equity for all three members of the applicant’s family. According to this order none of the family had any entitlement to be in the State after 12th October 2013.

Members of the Gardaí (Irish national police) arrived at the applicant’s home and entered the premises to arrest the applicant. Members of the Gardaí entered the child’s bedroom while sleeping and advised the applicant’s wife when to wake the child. The family were then transported to Dublin Airport where they were held in detention until the applicant declared that he would not accept being deported to Tanzania.

The applicant was formally arrested pursuant to s. 5(1)(d) of the Immigration Act 1999 and sent to Cloverhill prison. 

Decision & reasoning:

The High Court firstly considered the power of arrest, specifically with reference to the deportation order which allowed for, in the case of non-compliance, arrest and detention without warrant (s.5(1)  of the Immigration Act 1999(as amended)).

The applicant and his family were therefore liable for arrest under s.5(1) 1999 Act for failure to comply with the deportation order after the 12th October 2013.

Hogan J declined to accede to the applicant’s argumentation that a presentation letter, requiring the applicant to present himself at the Irish police on the 12th November 2013, had the effect of staying the deportation order until this date. Instead, Hogan J advanced that it was clear from the terms of the letter that the applicant was liable for arrest under s.5(1)(a) for failure to comply with the deportation order once 12th October 2013 had passed.

Turning to the question of whether or not the Gardaí had the power to enter the premises and effect an arrest under s.5(1)(a), Hogan J referred to Art. 40.5 of the Constitution, which provides that

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

Indeed, this provision applies , without distinction, to all persons in the State regardless of their status or nationality. Outlining the statutory provisions which allow Gardaí to enter a dwelling without a warrant, Hogan J referred to S.6(2) of the Criminal Law Act 1997 which allows, under certain conditions, Gardaí to enter a dwelling without a warrant for the purpose of effecting an arrest for an arrestable offence.

Furthermore, specific to immigration matters s.15 of the Immigration Act 2004 and similarly s.7 of the Aliens Act 1935 (as substituted by s.4 of the Immigration Act 2003) give powers to Gardaí to apply to the District Court for a warrant by a member of An Garda Síochána (Irish national police service). A warrant issued under this section authorises members of the Gardaí to enter the premises and search that place or any persons found there. Any person who obstructs or attempts to obstruct any member of the Gardaí acting in accordance with the warrant or fails to comply with a requirement under this section, or gives names or addresses which are false or misleading will be guilty of an offence.

Hogan J. stated that while s.7 of the 1935 Act and s.15 of the 2004 Act both allow the District Court to issue a search warrant for the purposes of enforcing the Immigration Acts, neither section permits the Gardaí to enter the premises for the purposes of effecting an arrest against a person whom a deportation order has been made.  The only power of arrest granted is when a person attempts to obstruct a Gardaí or fails to comply with a requirement of the Act. Importantly, a distinction can be drawn between these provisions and s.6(2) of the 1997 Act which does give Gardaí the power to enter a premises to effect an arrest.

Hogan J. opined that it was therefore clear the Oireachtas (national parliament) did not give the Gardaí the power to enter the dwelling – even pursuant to a search warrant – for the purposes of an arrest in order to give effect to a deportation order. This point of law is crucial in determining whether the Gardaí acted lawfully in arresting the applicant. 

The Court then considered whether the Gardai had an implied license to enter the premises and whether they had exceeded that licence. Case law has shown that an implied licence exists to come on to the curtilage of a dwelling for law enforcement purposes (DDP v Forbes [1994], DPP (Dooley) v Lynch [1998]) However, the Supreme Court has stated that entry into the dwelling itself is a completely different matter “the burden lies upon the entrant to prove that the inviolability of that dwelling has not been breached” (DPP v Gaffney [1987]). Carney J. in Freeman v DPP [1996] stressed that the inviolability of the dwelling was “no empty formula” and that express statutory authority was required to enter that dwelling.

 The Court accepted that the initial entry to the dwelling was in fact a lawful one. However, Hogan J. went on to state that the Gardaí quickly exceeded the implied consent to enter the premises as they immediately subjected the applicant and his wife to a de facto arrest and restraint in order to give effect to the deportation order. As such, the applicant was already in unlawful custody by the time he reached Dublin Airport under s.5(1)(d) of the 1999 Act.

In conclusion it was held that the Gardaí entered the dwelling without a search warrant for the purposes of arresting the occupants in order to give effect to deportation orders. This exceeded their powers of searching the premises only. The entry into the dwelling became unlawful as was the applicant and his family’s de facto detention and arrest.

Since the legality of the applicant’s detention was entirely contingent on the validity of that arrest under s. 5(1)(d) of the 1999 Act, it follows that the detention was unlawful and the applicant was released pursuant to Art. 40.4.2 of the Constitution.

Outcome:

Application Granted. 

Observations/comments:

Two points of note arise from the decision handed down by Hogan J.

Firstly, while no separate argument was made on behalf of the applicant’s son, the Court held that the Gardaí, while lawfully entering the premises, such lawful entry did not extend to the child’s bedroom.

The conduct of the Gardaí, by going upstairs to where the applicant’s son was sleeping was a breach of the child’s Constitutional Rights.

Also it appears that any attempt to enforce a deportation order against a child in a similar manner used here, i.e. unannounced and in the middle of the night “invading the sanctity” of the bedroom where they sleep will be at real risk of being found unconstitutional.

Secondly, it appears that housing provided under Direct Provision accommodation can be included in the definition of a dwelling. Hogan J. held that it was important to stress that Article 40.5 applies to every home in the State, irrespective of the nationality or status of the occupants of the dwelling.