The High Court found that a stay and a later undertaking protecting two Malaysian applicants were breached after failures in Garda notification procedures, but ruled that civil contempt had not been established because deliberate action was not proved.
In a judgment delivered on 20 July 2021, Ms Justice Tara Burns considered a motion by Chain Wen Wei and Tang Ting Tang seeking enforcement of an undertaking given on behalf of the respondents. They had also sought directions, including possible attachment and committal of the Commissioner of An Garda Síochána and two detective gardaí.
The applicants had sought permission to enter Ireland in December 2020 to attend English-language courses that were moved online because of Covid-19 restrictions. In an earlier judgment, the court held their refusal of leave to land lawful. The applicants then obtained a stay on the refusal notifications. On 10 March 2021, the respondents agreed to continue that stay for seven days after judgment. The court delivered its decision on 23 March 2021.
On 26 March, the respondents gave an undertaking not to take steps against the applicants until 5 May, when an application to certify an appeal was due to be heard. The next day, Detective Garda O’Mahony visited Wei and warned that she could be arrested, detained and deported if she did not leave. He also made disparaging remarks about her legal representatives. The following evening he attended Tang’s home and told her she had to leave the State.
The court found that O’Mahony did not know about the extended stay or the undertaking when he spoke to the applicants. Although Wei’s cousin told him she intended to appeal, the court said that did not establish that an appeal had been lodged or that an undertaking barred action. The court therefore found no contempt by the two detective gardaí.
The notification of the undertaking to the appropriate Garda address was ineffective, and nobody had been informed of the extended stay. The judge said this was a matter of grave concern and that, if negligence were the test, it would have been readily established. But the court found that the breach resulted from inadequate notification rather than deliberate conduct, and civil contempt by the Commissioner was not proved.
The judge described O’Mahony’s remarks about the applicants’ solicitors as completely inappropriate and said the court would not pursue the asserted criminal contempt issue. After assurances that undertakings would be enforced and that nothing further inappropriate had occurred, the court abstained from issuing directions.