The High Court has refused an application to release a Georgian man from Cloverhill Prison, ruling that his immigration detention was lawful. The Article 40 application challenged his arrest after he was returned to the State from Northern Ireland in October 2011.
Mr Justice Hogan found that immigration officials could restrain the man while examining his application for leave to land, including taking him from the border to Dundalk Garda Station. The court also concluded that there was a settled intention to deport him and that deportation could be achieved within the statutory eight-week period.
The applicant was named in the judgment as Datia Toidze, otherwise David Arabuli. The judge said he had entered Ireland in 2000 and unsuccessfully sought asylum under an alias, later also applying under his own name. A deportation order was made in December 2001. After being returned from Iceland in 2003, he remained physically in the State. The judge found that this did not amount to “ordinary residence” for the purposes of a statutory three-month deportation notice, because the applicant was subject to a deportation order and had used an alias. He also accepted evidence that the applicant had not given practical assistance to officials seeking to establish his identity.
The events leading to detention began when the applicant and a friend travelled through Northern Ireland while driving back from Donegal. After being detained there, both said they wanted to return to the State. On 3 October 2011, they were handed to Gardaí near the border. The judge found they were under restraint while being taken to Dundalk for immigration processing, although they had not yet been formally arrested.
The court held that the Immigration Act 2004 empowered an immigration officer to restrain a person arriving by land where objectively necessary to process an application for permission to enter. Given the applicant’s circumstances and immigration history, the judge found that he could not realistically have been processed at the border itself. The subsequent refusal of leave to land and detention pending removal were also found lawful. The applicant had been told the reason for his detention, the judge found.
A request to revoke the deportation order remained outstanding when the applicant was arrested; it was refused by letter on 18 October. The judge said its existence did not prevent a settled intention to deport him. He considered the earlier obstacle over obtaining Georgian travel documents resolved and found deportation achievable within the statutory period.
The judge said it was unsatisfactory that the applicant was not given an effective opportunity to contact his family and legal advisers until about two days into detention, although he found this resulted from oversight or inadvertence. He urged prison authorities to ensure detainees could make those contacts as soon as reasonably possible. The court nevertheless refused the application under Article 40.4.2 of the Constitution.