The High Court has refused an application to release a woman detained under a deportation order, finding that her arrest was lawful and that she was not entitled to three months’ notice before deportation.
In a judgment delivered on 25 January 2011, Mr Justice Hogan ruled on the woman’s Article 40.4.2 application for an inquiry into her detention. He concluded that she was in lawful detention and refused the requested release order.
The judgment said the woman, a South African national, first arrived in Ireland in 2000 using the alias Martha Kenny and made an unsuccessful asylum application. After a deportation order was made under that identity, she did not attend a Garda station as required and left the State. She returned in August 2004 under her own name and was granted student permission, which was renewed annually until November 2010. She later worked lawfully as a child minder.
In 2009 she applied for a residence card after marrying a Latvian national. The court said she answered incorrectly when asked whether she had previously been subject to a deportation order. The Minister refused further permission to remain in January 2011, citing information about the earlier alias and deportation order. The woman disputed the allegations and sought details of the evidence. She attended Naas Garda Station on 17 January as directed and was arrested.
The central residence issue was whether she qualified as “ordinarily resident” under section 3(9)(b) of the Immigration Act 1999. That provision required three months’ written notice before deportation for qualifying people who had been ordinarily resident for at least five years and were working or engaged in business or a profession. The court noted that no such notice had been given.
Justice Hogan held that ordinary residence in this immigration context required residence that was lawful, regular and bona fide. He found that the woman’s return under her own name without disclosing the earlier deportation order amounted to deception, and ruled that she did not qualify for the statutory notice protection.
The court also rejected the challenge to the arrest under section 5 of the 1999 Act. The arresting detective had been briefed that a deportation order remained in force, that the woman had previously failed to attend as required, and that fingerprints linked her to the alias. The judge found there was reasonable cause to arrest, including where the detective relied on information from another Garda member. He said the woman’s compliance with later attendance notices did not alter that conclusion.
The judgment records the judge’s sympathy for the woman’s distress, but concludes that her detention was lawful. It does not order her deportation; it refuses the application for release.