The Supreme Court accepted an appellant’s argument about the literal interpretation of an immigration detention provision, concluding that the consequences of the interpretation had to be accepted in a case concerning detention pending deportation.
In a judgment delivered on 10 May 2012, Justice MacMenamin agreed with the decisions in judgments by Justices Fennelly and Clarke. He said the High Court judge had correctly applied the legal authorities before him and that the doctrine of precedent applied to immigration law.
The appeal concerned section 5(6) of the Immigration Act 1999 and the meaning of “period or periods” and “in aggregate”. The appellant argued that detention time could begin again only where there was an entirely fresh ground for detention, rather than new facts or events arising during an existing eight-week detention period. Justice MacMenamin said passages from an earlier Supreme Court judgment, Re Illegal Immigrants (Trafficking) Bill 1999, supported the appellant’s argument.
Justice MacMenamin acknowledged what he described as a troubling consequence: the appellant’s violent misconduct had prevented his orderly deportation, and under the interpretation adopted he had benefited from that conduct. He said the Act did not answer what authorities should do if someone prevents deportation near the end of a detention period, including whether that person should be released. He also noted that the appellant was entitled to rely on a literal interpretation of the statute given the fundamental right to liberty at stake.
The judgment did not resolve those questions about what authorities should do in such circumstances. Justice MacMenamin said addressing the situation was a matter for the legislature, while recognising the need to balance the State’s interests with individual rights. The supplied judgment is his concurring judgment; it does not set out the full operative order of the court.