Detention order, though initially validly made, may in subsequent circumstances cease to have force
Mekudi Yau (applicant) v The Minister for Justice, Equality and Law Reform and the Governor of Cloverhill Prison (respondents).
Immigration law - Asylum - Article 40 inquiry - Detention pending arrangements for transfer from the State to a Council Regulation country - Whether application for asylum withdrawn and where - Whether Italy had a "take back responsibility" - Whether transfer order ceased to have force and effect where application for asylum withdrawn - Whether an enforcement order is inseparable from the original order -Bunreacht na hEireann 1937, Article 40 -The Refugee Act 1996 (No.17), S.22. - The Refugee Act 1996 (Section 22) Order 2003, ( SI No. 423 of 2003), Article 7 - Council Regulation (EEC) 1612/1968, - Council Regulation (EC) No. 343/2003, Articles 2(f) 13, 16 & 20. - European Convention on Human Rights, Article 8
The High Court (before Mr Justice O'Neill): ex tempore judgment delivered October 14th, 2005.
The submission to the effect that the enforcement of an order is inseparable from the original order is incorrect. There are many instances where an order which was made validly can cease to have force and effect, for example, a deportation order which is excessively delayed or which is used for an ulterior purpose. There is ample authority for the proposition that an order though validly made, may for one reason or another cease thereafter to have force and effect.
The High Court so held in declaring the applicant's current detention unlawful and granting an order for his release.
Saul Woolfson BL for the applicant; Emily Farrell BL for the respondents.
Mr Justice O'Neill began his judgment by outlining that the proceedings were an inquiry under Article 40(4) of the Constitution into the legality of the detention of the applicant who had been detained since September 28th, 2005, in Cloverhill Prison on foot of a detention order made on foot of a transfer order. Mrs Justice Finlay Geoghegan directed the inquiry on October 10th, 2005, and pursuant to her order the respondent had certified in writing the grounds on which the applicant was detained and was to the following effect. He was detained pursuant to a detention order dated September 28th, 2005, an order made under the provisions of the 1996 and the Order of 2003, in particular Article 7 thereof, and the order was to the effect that the applicant was to be detained in a prescribed place pending the making of arrangements for his transfer from the State to a Council Regulation Country which in this case was Italy.
Mr Justice O'Neill then recited the history of the matter. The applicant, a Nigerian national made an application for asylum in Ireland on March 14th, 2005, and filled out the usual questionnaire on March 21st, 2005. Mr Justice O'Neill stated it was clear from the applicant's own affidavit that he had a very bad immigration history throughout Europe, having spent time as an illegal in several EU States. The applicant also had convictions for two drug offences in Austria. On March 15th, 2005, an inquiry was made in relation to the applicant's fingerprints to the Eurodac Centre Unit and a hit was made, subsequently confirmed by a fingerprint expert, which showed that the applicant had made an asylum application in Torino (Turin, Italy) on November 6th, 2003. On May 6th, 2005, the office of the Refugee Applicants Commission made a formal application to Italy under Article 16(1)(c) of Council Regulation No. 343/2003 to take charge of the applicant and admit him to Italy for the purposes of examining his asylum case. No reply was received from Italy. On May 24th, 2005, the Refugee Applications Commission determined that Italy was responsible for the applicant's asylum application. The applicant appealed that determination to the Refugee Appeal Tribunal which dismissed his appeal on July 14th, 2005. On June 21st, 2005, the Minister for Justice, Equality and Law Reform executed a transfer order in respect of the applicant. The applicant's solicitor wrote to the Minister requesting he revoke the transfer order or not take any steps to enforce it relying on the provisions of Article 8 of the European Convention on Human Rights and stating that the applicant was engaged to a German national and would in due course be making an application for residency based upon family rights. The Minister replied by letter dated July 22nd, 2005, stating that the State of Italy was responsible for dealing with the applicant's case. On September 19th, 2005, the applicant married a German national in a registry office in Ireland and on September 23rd, 2005, the applicant's solicitor wrote informing the relevant authority of the marriage enclosing a marriage certificate and Council Regulation 1612/1968 was relied upon to support an application of residency. There was a reply by letter of September 27th, 2005, reiterating Italy was responsible and that the transfer there would not prejudice the applicant's application for residency based on marriage if that application was to be made from outside the State. A letter of September 29th, 2005, was sent to the applicant from the EU Treaty Section, Immigration Division, dealing with his application for residency status and setting out the relevant requirements for the purpose of making that application. In the meantime the applicant had been arrested and detained in Cloverhill Prison and was there since that time. The applicant formally withdrew his application for asylum by letter of October 6th, 2005, and his solicitor sent a further letter of October 10th, 2005, to the relevant authority in Italy contending that Italy was not the appropriate place but notwithstanding stating the applicant was withdrawing the application.
Mr Justice O'Neill then summarised the applicant's case which was that once the application for asylum was withdrawn the transfer ceased to have force and effect and thereafter any further detention of him was unlawful. Counsel submitted that the applicant was entitled to have his application for residency considered and to remain in the State pending the outcome of that application and that a transfer to Italy with the consequential risk of an onward transfer or repatriation was a disproportionate response by the Minister because of the probable consequence of disabling him of a right of residency, if successful in his application.
Mr Justice O'Neill then referred to the submissions on behalf of the State. It was submitted that the applicant did not withdraw either in law or in fact his application for asylum. It was submitted that the withdrawal of the application in Ireland occurred by operation of law once Italy did not respond to the request under Council Regulation 343 of 2003. It was submitted that that under Articles 16 and 20 of Council Regulation 343 of 2003 Italy was obliged to take back the applicant notwithstanding his purported withdrawal of his Irish application and that the transfer order remained valid and of full force and effect and thus the detention on foot of it remained valid and lawful. Reliance was placed on the judgment of Laffoy J. in the case of Lelimo v Minister for Justice, Equality and Law Reform IR 190 to submit that the enforcement of the order is not separable from the transfer order itself and once the order was valid the enforcement of it could not be said to be invalid. It was submitted that the applicant was not entitled to residency under Article 10 of Council Regulation 1612 of 1968 and further that the transfer to Italy was not disproportionate. Counsel submitted that a transfer order was not like a deportation order and did not carry the final exclusion of a deportation order; that at any stage depending of course upon his application for residency he could apply to come back and would be readmitted into the State.
Mr Justice O'Neill thereafter quoted the relevant Irish Statutory and European Union provisions. Section 22(8) of the 1996 Act provides that where an application has been transferred to a convention country for examination the application shall be deemed to be withdrawn. Mr Justice O'Neill said that the 1996 Act Section 22 Order of 2003, in particular Article 7, provides for the transfer of a person from the State to a Council Regulation country. Articles contained in Council Regulation 343 of 2003 were found to be relevant. Having examined all the relevant statutory provisions, Mr Justice O'Neill stated that no issues arose in this case as to the validity of the transfer order made. Mr Justice O'Neill said the first issue was whether or not the application for asylum was withdrawn and where. Mr Justice O'Neill was satisfied that the application was withdrawn in Ireland by virtue of the provisions of s.22(8) of the Refugee Act 1996 but stated that that only had the effect of causing by operation of law its withdrawal in Ireland. The application remained a live application for asylum but, by virtue of the relevant Irish statutory provisions and the EU directive, the application then became an application in Italy. Mr Justice O'Neill was satisfied as a matter of fact that the letters of October 6th and 10th, 2005, did have the effect of causing the withdrawal of all outstanding applications for asylum. It seemed to Mr Justice O'Neill that the only reasonable construction that one could put on the combination of those two letters was that the applicant sought and intended that any outstanding application for asylum, be it in Italy or Ireland, should be withdrawn and it seemed to the learned judge that that effect was clear from the terms of those two letters when taken together. Mr Justice O'Neill was also satisfied that the those two letters comfortably complied with Article 2(f) of Council Regulation 343/2003 so as achieve the effect of causing the withdrawal of all or any outstanding applications for asylum in an EU Member State.
Turning to the next issue of what affect does that conclusion have on the "Take Back" liability of Italy under Article 16, Mr Justice O'Neill was satisfied that the applicant's case could only come within Article 16(1)(d) which provides that:
"1. The Member State responsible for examining an application for asylum under this Regulation shall be obliged to: ....
(d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State."
In Mr Justice O'Neill's view the crucial part of that article for the purposes of this case was the final phrase "and made an application in another Member State". Mr Justice O'Neill stated that the applicant had clearly not done that, he had no outstanding application for asylum in any Member State. That being so, Mr Justice O'Neill was satisfied that Italy had no "Take Back" responsibility. Mr Justice O'Neill stated that this interpretation of Article 16(1)(d) and his conclusions in respect of it in his view accorded with reason and common sense. Why should Italy take the applicant back for the purposes of examining his case for asylum, when there was no application for asylum and when the State of Italy was not or could not be called upon to provide asylum. Mr Justice O'Neil therefore concluded that Italy had no liability to take the applicant back under Article 16 in the first place as a primary liability and, hence, that being so that liability, because it didn't exist, could not be said to cease under the provision of Article 16(4).
Mr Justice O'Neill was satisfied that because effect could not now be given to the transfer order, because Italy had no liability to take the applicant, the transfer order had ceased to have force and effect and that state of affairs occurred when the applicant withdrew his application for asylum as of October 10th, 2005, and as a necessary consequence of that the detention order made could not retain validity when the purpose of a detention ceased to exist. In Mr Justice O'Neill's view the submission to the effect that the enforcement of the order is inseparable from the original order was incorrect and he stated that there are many instances where an order which was made validly can cease to have force and effect and gave the example of a deportation order which is excessively delayed or which is issued for an ulterior purpose. In his view the passage in the judgment of the Supreme Court in the case of the Illegal Immigrants Trafficking Bill Article 26 2 IR 360 at 411 was ample authority for the proposition that an order, though valid, may for one reason or another cease thereafter to have force and effect.
It was Mr Justice O'Neill's view therefore, in conclusion, that the detention of the applicant from October 10th, 2005, was unlawful. It seemed to the learned judge that this being an Article 40 inquiry it was neither necessary nor appropriate for him to continue the inquiry any longer by dealing with the other learned submissions made by counsel on both sides, it being unnecessary to resolve the question of the legality of the detention and that being so Mr Justice O'Neill declared that the applicant's current detention was unlawful and there must be an order for his release.
[This case is under appeal]
Solicitors: Conor O'Briain Solicitors (Dublin) for the applicant; The Chief State Solicitor's Office for the respondents.
Joan Kelly, Barrister